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SAXE, ON ELEGllONS 


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SAXE, ON ELECTIONS 


WHAT THE PAPERS SAY 
1913 

NEW YORK STJN 

great many citizens puzzled as to their rights, 
duties and liberties under the election laws of New 
York State appeal to the Sun in person or by letter 
every year for information * * * We have advised 

freely and confidently on this subject Republicans, 
Democrats, Prohibitionists, Socialists, Independence 
Leaguers, Bull Moosers, Single Taxers, Mugwumps, 
reformers of all shades of opinions, wise men and 
fools * * * Hereafter, in our school for electors, 

we shall use for supplementary reading, and quote as 
an authority, ex-Senator John G. Saxe’s ‘ Treatise on 
the New York Laws Relating to Elections ’ * * * 

Its library enriched with this volume, The Sun is fully 
prepared for the 1913 session of its School for Voters. ’ ’ 

NEW YORK PRESS 

‘‘ This text explains the laws in the clearest and 
most direct English that any one can understand. 
This is one of the rare technical works that is of inter¬ 
est to laymen as well as those who are specialists in 
law.” 

NEW YORK LAW JOURNAL 

‘‘ Serviceable not only to members of the legal pro¬ 
fession, but to election officers and the public at large 
# # # A reliable and very useful manual.” 

[i] 



11 


What the Papers Say 


NEW YORK WORLD 

“A valuable election handbook. A book very much 

of theh<n^^,0iTO3J3 ;<0 .3ZAe 

BROOKLYN EAGLE 

What the laws mean, require, impose and demand 
can be clearly, coi^fehended.^by^tjie, dayman in a 
night’s study'Af the work.‘ 

BINQHAMTOlir PRESS 

So. clearly and siinply .expressed that it ^hould 
have a .wide .reading among political workers and 
voters. -■ 

, ' ,}n TOWN TOPICS d: ' -H.. . 

Every isufeject is treated with charming directness 
and simplicity, and all statements necessarily must be 
reliable, because Mr. Saxe makes them. 

‘i(. ‘l-; . 

-,ji . OSWEGO DAILY TIIiES q, . 

In other words, you feel that you have chart and 
compass and clear sailing ahead in this invaluable 
little treatise ^ You canH ask yburself any qnies- 
tion about the law of elections that this 

admirable compendium by a master interpreter will 
not solve for you.” 

nao'v an 

.. 1914 ■ .. T. . 

r-T iwtn NEW YORK STJN;v:'>{ ; id 

Mr. Saxe in preparing it has rendered a distinct 
service to the community*” 

■ I 

NEW YORK" EVENING POST 

■” Almost indispensable for ready reference 'bn all 
disputed points.^’ ; /! 




What the Papers Say 


iii 


UTICA OBSERVER 

‘‘ Every patriotic citizen, anxious to make himself 
familiar with the laws relating to elective reform, 
should have a copy of this work in his library/’ 

NEW YORK WORLD 

“In its revised form, Senator Saxe’s book is the 
very complete and useful informant and guide of the 
voter, the leader or any citizen interested in the integ¬ 
rity of our voting system.” 

ALBANY TIMES-UNION 

“Probably no book has ever made so forcible an 
appeal to the public generally to inform itself on the 
heretofore incomprehensible complexity of our elec¬ 
tive system. Certainly no technical work has ever 
received more favorable comment in the public press.” 




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MANUAL 


OF 

Nftu fork ffiatoa Srlattng to Elrrtiona 


BY 


JOHN GODFREY SAXE, M.A., LL.B. 

u 

STATE SENATOR, 1911, 1912 
COUNSEL TO THE GOVERNOR, 1914 
DELEGATE TO THE CONSTITUTIONAL CONVENTION, 1915 


“ The right of suffrage is one of the most valuable 
and sacred rights which the constitution has conferred 
upon the citizen of the state.” 

People ex rel. Stapleton v. Bell, 119 N. Y. 175, 178 


Albany 

J. B. Lyon Company 
1915 



Copyright, 1913 , 1914 , 1915 
By JOHN G. SAXE 




•I » 


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- f. 


i 



tEable of Contents 

PAKT FIRST PAGE 

The Constitution. 1 

Article I. The Constitution and its Interpretation. 1 

“ II. Franchise, Rights and Privileges of Members of 

the State... 4 

III. Qualifications and Disqualifications.. 7 

IV. Residence ... ... 12 

V. Registration..... 18 

VI. Secrecy. 23 

“ Vn. Bipartisan Boards. 23 

VIII. Private or Local Laws. 24 

IX. Vacancies in Public Office.. 25 

“ X. Oatli of Office. 26 

“ XI. Constitutional Convention.. 27 

PART SECOND 

The Election Law. 31 

Article 1. The New York System of Elections. 31 

Title 1. Election Laws . .. 31 

“ 2. Fundamental Distinctions... 38 

B. Election Reform of 1913... 39 

“ 4. Further Election Reform. 42 

Article II. Enrollment of Voters. 43 

Title 1. In General .i. 43 

2. Paraphernalia. 44 

“ 3. Manner of Enrollment. 45 

4. Canvass of Enrollment.. 46 

5. Correcting Erroneous Enrollment. 46 

“ 6. Enrollment of New Political Party. 46 

7. Special Enrollment TJpon Coming of Age. 46 

“ 8. Enrollment Books.... 47 

“ 9. Publication of Enrollment. 47 

Article III. Party Organization. 48 

Title 1. Political Subdivisions of the State. 48 

2. Conventions. 49 

[vii] 



































viii Table of Contents 

PAGE 

Title 3. Committees . . ^2 

“ 4. Determination by Party Authorities. 53 

Article IV. Nominations, In. general.. 54 

Title 1. Definitions. 54 

2. Methods of Nomination. 54 

3. Selection of Emblems. 55 

4. Conflict in Names or Emblems at General Elec¬ 

tions . 57 

“ 5. Objections. 60 

6. Declinations. 60 

7. Vacancies in Nominations. 62 

8. Record of Nominations, Objections and Declina¬ 

tions . 64 

9. Printing the Ballot. 65 

“ 10. Failure of Election Officials to Act. 66 

Article V. Nominations by Parties by Primaries. 69 

Title 1. In General . 69 

2. Date and Hours. 69 

3. Qualification of Voters. 70 

4. Designations. 70 

5. Objections. 72 

6. Declinations. 73 

7. Official Primary Ballot. 74 

8. Primary Districts, Officers, Conduct of Primary, 

Elections, Canvasses. 77 

Article VI. Independent Nominations . 82 

Title 1. In General. 82 

2. Method of Nominating. 83 

3. Qualifications of Signatories. 86 

“ 4. Number of Signatories. 88 

“ 5. The Certificate and its Execution. 89 

Article VII. Registration. 90 

Title 1. Definitions and Distinctions. 90 

2. Registration in Rural Communities. 91 

“ 3. Registration in New York City. 93 

4. Registration Generally. 93 

5. Qualification and Disqualification of Voters. 94 

6. The Register. 95 

“ 7. Conduct of Registration.i. 95 

Article VIII. General and Special Elections. 97 

Title 1. Time and Place. 97 







































Table of Contents ix 

PAGE 

Title 2. Vacancies in Public Office. 99 

“ 3. Paraphernalia. 100 

“ 4. Conduct of. Elections and Methods of Voting... 101 

5. Clialienges. 106 

6. Original Canvass by Election Officers. 107 

“ 7. Irregularities at Elections. 115 

8. Canvass by County, City and State Boards.115 

Article IX. Ballots at General Elections. 117 

Title 1. The Official Ballot. 117 

“ 2. Sample Ballots. 120 

“ 3. Unofficial Ballots . 121 

Article X. Marking the Ballot. 121 

Title 1. Statutory Rules. 121 

2. Cross Marks and Marks other than a Cross Mark. 

Saxe Law. 122 

“ 3. Black Lead Pencils. Writings. Erasures. Tears. 129 

4. Alterations subsequent to voting. 130 

5. Straight and Split Voting of Massachusetts 

Ballot. 130 

6. Straight and Split Voting of Party Column 

Ballots. 130 

7. Ballots Marked in Two or More Circles. 131 

“ 8. Ballots Defectively Printed... 132 

Article XI. Town Meetings. 132 

“ XII. Village Elections to Determine Proposition for 

Incorporation.133 

XIII. Soldiers and Sailors Elections in Time of War.. 133 

“ XIV. Election of United States Senators and Repre- 

presentatives in Congress. 133 

Title 1. In General. 133 

“ 2. Election of United States Senators. 136 

“ 3. Representatives in Congress. 136 

Article XV. Voting Machines. 137 

Article XVI. Officers. 140 

Title 1. Officers enumerated. Relative Functions.140 

“ 2. State Superintendent of Election. 140 

“ 3. Boards of Election. 145 

“ 4. Election Officers.146 

5. Watchers. 149 

^ 6. Challengers. 150 



































X 


Table of Contents 


PAGE 

PART THIRD 

Corrupt Practices ... -... 151 

Article I. In General. 151 

“ 11. Legal Expenditures and Contributions.. 151 

Title 1. Legal Expenditures . 151 

“ .2. Limits of Expenditures and Contributions...... 152 

“ 3. Judicial Candidates ... ---- --- ......... 152 

“ 4. Solicitations .. 152 

“ 5. Contributions from Governmental Employees... 153 

“ 6. Contributions from Corporations. 153 

Article HI. Statements. 154 

ly. Miscellaneous Provisions. 156 

PART EOURTH 

P-ROCEDURE .. 157 . 

Article I. Policy as to Judicial Review. 157 

U. Varieties of Procedure in Election Cases. 158 

“ III. Decisions as Affected by Point of Time. 159 


Title. 1. Proceeding for Instructions Prior to Controversy. 159 
^ 2. Deciding Questions not Material to Controversy. 159 

“ 3- Abstract Questions after Controversy Ended. .. . 160 


‘‘ 4. Prompt Determinations ... .. 160 

Article IV. Summary Proceedings.....161 

Title 1. In General .. 161 

'' 2. Enrollment. 161 

“ 3. Membership of Party Committees. 163 

4. Designations and Primaries..... 163 

“ 5. Certificates of Nomination. Names and Emblems. 166 

“ 6. Registration. 168 

7. Official Ballots.-170 

“ 8. Corrupt Practices Act... . 170 

Article V. Mandamus. 171 

Title 1. Enrollment... 171 

“ 2. Acceptance of Vote__ 171 

“ 3. Recount and Preservation of Ballots. 171 

4. Canvass. 175 

5. Title ......... 176 

“ 6. By -Whom Granted.•.. . 176 

Article VI. Taxpayers Actions . 176 

“ VH. Certiorari to Review. 177 


































Table of Contents 


XI 


PAGE 

Article VIII. Habeas Corpus and Certiorari to Inquire into 


Cause of Detention. 177 

Title 1. Procedure. 177 

2. Information or Deposition. 179 

3. Commitment. 181 

Article IX. Actions to Try Title to Office. 184 

Title 1. Equity. 184 

2. Mandamus. 185 

“ 3. Code Action in Nature of Quo Warranto.185 

Article X. Equity. 190 


XI. Action for Damages Against Election Officers... 190 


PART FIFTH 

Crimes Respecting the Electi\te Franchise . 191 

Article I. In General . . . . 191 

II. Enrollment.191 

“ III. Primary Elections. 192 

“ IV. Registration.193 

Title 1. False Registration . 193 

2. Misconduct of Registry Officers. 193 

“ 3. Registry List . 193 

4. False Application . l93 

5. Perjury — Challenge Affidavit.194 

6. Assisting False Registration. 194 

“ 7. False Registration for Special Election. 194 

Article V. Impeding Superintendent of Elections. 195 

“ VI. Certificates of Nomination and Official Ballots. . 196 

VII. Official Ballots.196 

VIII. Refusal to Permit Employees to Attend Election. 197 

IX. Illegal Voting. 197 

‘‘ X. General Elections. Election Officers. 197 

XI. Naturalization Certificates. 199 

“ XII. Corrupt Practices.. 200 

“ XIII. Police in Politics. 200 

“ XIV. Conspiracy.201 

“ XV. Giving and Receiving Consideration for Franchise. 201 

“ XVI. Duress or Intimidation of Voters. 2’01 


































Table of Contents 


xii 


PAGE 

Article XVII. Use of Position of Authority. Political Assess¬ 


ments . 202 

“ ■ XVIII. Immunity. 202 

“ XIX. Penalties. 203 

Title 1. Misdemeanors. 203 

“ 2. Felonies. 203 







®at)lc of Cases 

A page 

Ahern v. Elder, 195 N. Y. 493....2,9,10, 24 

Ashby V. White, 2 Lord Raymond, 938.: . 190 

Aultman v. Syme, 163 N. Y. 54.. 21 

B 

Bew V. State, 71 Miss. 1. 21 

Bertholf v. O^Reilly, 74 N, Y. 509.. 2 

Blodgett V. Race, 18 Hun, 132. 181 

Burke v. Terry, 203 N. Y. 293.57, 89 

• C 

Carroll v. Smith, 111 U. S. 556. 22 

City of Santa Rosa v. Bower, 75 Pae. 829. 22 

Coggeshall v. Des Moines, 138 Iowa, 730. 21 

County of Albany v. Hooker, 204 N. Y. 19.. .22, 176 

Croker v. Sturgis, 175 N. Y. 158. 160 

D 

Delehanty v. Britt, 212 N. Y. 457. 25 

Demarest v. Wickham, 63 N. Y. 320... 176 

Didsbury v. VanTassel, 56 Hun, 423. 98 

Durfee v. Harper, 22 Mont. 354. 23 

E 

Eisenhofer v. New Yorker Publishing Co., 91 App. Div. 94. ... 161 
Ellingham v. Dye, 99 N. E. Rep. 1. 23 

F 

Florida ex rel. Bisbee v. Board of Canvassers, 17 Fla. 9. 135 

Flynn v. Union Surety Co., 170 N. Y. 145. 98 

Fraser v. Brown, 203 N. Y. 136.3,19, 92 

G 

Goetcheus v. Matthewson, 61 N. Y. 420. 10 

Green v. Shumway, 39 N. Y. 418. 9 

[xiii] 
























XIV 


Table of Cases 


H PAGE 

Hankins v. Mayor, 64 N. Y. 18. 115 

Hanrahan v. Terminal Commission, 206 N. Y. 494. 160 

Hart V. Kip, 148 N. Y. 306. .. 14 

Hearst v. Woelper, 183 K. Y. 274....41,157, 172 

Hewitt V. Newberger, 141 N. Y. 538 . 181 

Hopkins v. Duluth, 81 Minn. 189. 22 

Hopper u. Britt, 203 N. Y. 144.2,3,5,6,138, 139 

Hopper V. Britt, 204 N. Y. 524 . 4,6, 56 

Horton v. Whister, 4 State Rep. 810. 149 

J 

Jackson v. Britt, 147 App. Div. 87. 46 

Jenkins v. Waldron, 11 Johnson, 114. 190 

K 

Kessel v. Zeiser, 102 N. Y. 114. 189 

Kilbourn v. Thompson, 103 XJ. S. 168..*. 1 

Kirk V. Gallagher, 146 App. Div. 685 .. 63 

Kittinger v, Buft'alo Traction Co., 160 N. Y. 377. 2 

Koenig v. Britt, 149 App. Div. 68, affirmed 204 N. Y. 681. ... 71 

Kortz V. Board of Canvassers, 12 Abb. N. C. 84 ... 116 

L 

Louisiana v. Sugar Co., La. Supreme Court, 1915. 23 

Lurman v. Jarvie, 82 App. Div. 37... 190 

Lynch v. Britt, 212 N. Y. 580 . 25 

M 

Matter of Adams, 21 Misc. 396. 83 

“ Archibald, 78 Mise. 86. 89 

‘‘ Atkinson, 28 Misc. 694, affirmed 45 App. Div. 628... 112 

‘‘ Baillee, 78 Misc. 84. 89 

Baldwin, 80 Misc. 263. 132 

Barry, 164 N. Y. 18.17, 18 

“ Bayne, 69 Misc. 579. 85 

Bennet, 116 App, Div. 138. 89 

Bornemann, 6 App. Div. 524. 98 

Brevillier, 116 App. Div. 144, affirmed 186 N. Y. 266. 87 

“ Brough, L. J., December 2, 1910. 175 

Bulger, 48 Misc. 584. 83 































Table of Cases 


XV 


PAGE 

Matter of Callalian, 200 N. Y. 59.4, 5 

‘‘ ■ Carr, 04 App.'Div. 493... 58 

“ Cohoes, 78 Mise. 87. 88 

“ • • CoUins, 64 How. Prae. 63... 15 

“ Commissioner of Elections,• 64 Misc. 620...59, 87 

“ Conj^hlin, 198 N. Y.-613, affirming* 137 App. Div. 283. 165 

'' Cowie, 11 Supp. -838... 60 

Cnddebaek, 3 App. Div. 103.. 85 

“ Darling, 189 N. Y. 570..84, 85 

“ ■ • -Davies-, 168 N. Y. 89... 1 

DeCroot, 197 N. Y. 5S9; 213 N. Y. 627. . 124 

-Duffy-, 125-App. Div. 406. 43 

Emmet, 150 N. Yi 538.... *.. 168 

Fairchild, 151 N. Y. 359.•.....53, 160 

Fagan, 21-Misc. 403-..;... 83 

Fallon, 197 N. Y. 336.124,125,126,127, 131 

■ Folks, 134 App. Div. 376, affirmed 196 N. Y.. 540.... 59 

“ • Oage, 141 -N. Y. 112....-.8,'160 

“ Gardner, 68 N. Y. 467;..185 

- Garvey, 147 N. Y.-117.*... 17 

“ Garvin, Law Journal, June 9, 1915. .. .124,126,127, 129 

“ • Goodman, 146 N. Y;‘284.... .13,17,18, 169 

Greene, 9 -App. Div. 223, affirmed 150 N. Y. ’566.. 55, 57 

Guden, -171 N. Y. 529^. -.... 1 

• Guess,-16 Misc. 306....-.....v. .161, 171 

Hart, 159 N. Y. 278;‘161 N. Y. 507.. 185 

“ Hart, 25 • Misc; 93._. 169 

Haugh, 141 App. Div. 26... 161 

“ Heacock, 18 Mise. 311... i.;.. . 54 

“ 'Hearst, 183 N.'Y. 274...•. 101 

“ -Hearst, 48 Mise. 453.. I- . 127 

• Heineman, 124 App. Div.-918. ’..162 

Hennessy, 164 NV' Yr 393....160, 168 

Henry; 13 Misc. 734... 182 

• Herman-, 108; App- Div. 335..5 .;. 168 

• Hines, 141 App. Div. 569.117,165,166, 185 

Hirsh, 14 Misc.-377. . .*.'...'..'i. 66 

' Holle, 160 App. Div. 369...'..-.:.‘.-166, 190 

• Holmes, 30 Mise. 127.•..'.... 132 

Holtzmann, 87 Misc. 116.; .... 66 










































Table of Cases 


PAGE 

of Horan, 108 App. Div. 269. 86 

Independent Nominations, 186 N. Y. 266... .58,89, 167 

Jacobs, 45 Misc. 113.. 169 

Jerome, 48 Misc. 441... .. 131 

Kaufman, 152 App. Div. 940.. 58 

Kaufman, Law Journal, September 22, 1914. 73 

King, 155 App. Div. 720.71,160, 164 

Kirk, 66 Misc. 535. 45 

Knollin, 59 Misc. 373, affirmed 128 App. Div.' 908; 

affirmed 196 N. Y. 526. 24 

Lance, 55 Misc. 13.156, 170 

Larkin, 163 N. Y. 201. 132 

Lorman, N. Y. L. J., May 13, 1910. 181 

McGuire, 117 App. Div. 637, affirmed 188 N. Y. 585. 162 
McLennan, 65 Misc. 644, affirmed 142 App. Div. 926; 

affirmed 204 N. Y. 608....,. 154 

Madden, 148 N. Y. 136...65, 160 

Manning, 139 N. Y. 446. .. 160 

Matthews, 143 App. Div. 561.- 93 

Merow, 112 App. Div. 562. 65 

Morgan, 114 App. Div. 45.142,169 

Murphy, 126 App. Div. 58. 71 

Murphy, 165 App. Div. 308. 129 

Myers, 140 App. Div. 22..•.. 65 

Newcomb, 192 N. Y. 238.. 13 

Norton, 34 App. Div. 79, appeal dismissed 158 N. Y. 

130. 85,146, 160 

Norton, 152 App. Div. 628... 115 

O’Brien, 206 N. Y. 694.,5, 59 

O’Brien, 117 App. Div. 628, affirmed 188 N. Y. 585. . 162 

Ordway, 118 App. Div. 386. 175 

Peters, 60 Misc. 420. 77 

Quimby, 116 App. Div. 142, affirmed Matter of Inde¬ 
pendent Nominations, 186 N. Y. 266. 59 

Rathborne, 164 App. Div. 916..163 

Reynolds, 144 App. Div. 458... 1 

Reynolds, 202, N. Y. 430..22, 176 

Thomas E. Rush, 42 Misc. 70.... 81 

Salter, 76 Misc. 33.72, 163 

Sawyer, 124 U. S. 200. 185 



































Table of Cases xvii 

PAGE 

Matter of Smith, 41 Misc. 501.. 58 

Social Democratic Party, 182 N. Y. 442.58, 160 

Steinbrink, September, 1914, Benedict, J. 44 

Stewart, 155 N. Y. 545.101, 174 

Stiles, 69 App. Div. 589. 101 

“ Stoddard, 158 App. Div. 525. 168 

“ striking 539 names from the enrollment books of the 
29th Assembly District, Law Journal, September 13, 

1909. . .. 163 

“ Swarthout, 76 Misc. 24. 85 

“ Sweeney, 209 N. Y. 567.166, 167 

“ Titus, 117 App. Div. 621, affirmed 188 N. Y. 585. .160, 162 

Tompkins, 23 App. Div. 224. 175 

“ Village of Webster, 102 App. Div. 202. 133 

‘‘ Walker, 134 App. Div. 947. 89 

Ward, 78 Misc. 15....... 165 

“ Watson, 193 N. Y. 612. 163 

Wechsler, 134 App. Div. 378... 59 

‘‘ Wilkins, 158 App. Div. 523. 135 

“ Wise, 108 App. Div. 52......;_... 83 

“ Woods, 151 Suppl. 856. 190 

“ Zimmer, 76 Misc. 320.... 190 

“ Zimmer, 77 Misc. 336. 166 

McConaghy v. Secretary of State, 106 Minn. 392..... 23 

McCarg v. Burr, 106 App. Div. 275... 181 

McKane v. Adams, 123 N. Y. 609.. 33 

McKelvey v. Marsh, 63 App. Div. 396.... 181 

McLaughlin v. Connors, 185 N. Y. 545..;... 165 

May v. Bermel, 20 App. Div. 53... 22 

Mayor v. Shattuck, 19 Colo. 104. 21 

Metz V. Maddox, 189 N. Y. 460...157, 187 

Moir V. Provident Savings Society, 127 App. Div. 591. 185 

Montgomery v. Odell, 67 Hun, 169, affirmed 142 N. Y. 665.... 67 

Morgan v. Furey, 186 N. Y. 202.. 141 

Mott V. Connolly, 50 Barbour, 516... 185 

N 

Nebraska ex rel. Wakely v. Lockwood, 3 Wall. 236. 135 

Newcomb v, Leary, 128 App. Div. 329. 98 

New York v. City Railroad, 193 N. Y. 543. 3 

N. Y. Cement Co. v. Keator, 62 App. Div. 577, affirmed 173 

N. Y. 235.. 189 

Nichols V. MacLean, 101 N. Y. 526. 185 








































XVlll 


Table of Cases 


0 PAGE 

O’Reilly Mitcliel, 85 Misc. 176. 190 

P 

People V. Albany Railroad, 57 N. Y. 161. 185 

“ V. Brennan, Law Journal, October 25, .1901. 8 

. r. Burgess, 153 N. Y. 561. 21 

’ r. Cady, 143 N. Y. 100. 17 

r. Carieton, 41 Misc. 523. 144 

r. Cook, 8 N. Y. 67...............115,116,186, 189 

-r. Cramer, 22 App. Div. 189. 181 

. V. Draper, 15 N. Y. 532. .... 2 

. V. Fabian, 192 N. Y. 443 .... . . 94 

V. Ferguson, 8 Cowen, 102 . 189 

v. Hiley, 33 Misc. 168....,. 180 

“ V. Hoclistim, 76 App. Div. 25.10, 107 

V. McClellan, 191 N. Y.. 341 .. 159, 188 

/V. McClellan, 118 App. Div. 177^ affirmed 188 N. Y. 618. 186 

; “ McClellan, 119 App; Div. 416.... .... .186, 187 

. V. McClellan, 124 App. Div. 664 . 187 

• r. Nowak, 5 Supp. 239. 181 

17. Platt, 117 N. Y. 159....... 14 

“ V. Seaman, 5 Denio, 409.,.:. 189 

17. Snedecker, 160 N. Y. 350.:. 133 

“ 17. West, 106 N. Y. 293..,.... 1 

17. Willett, 213 N. Y. 368.'..... 202 

17. Wright, N. Y. L. J. December 8, 1914,. 17 

People ex rel. Abrams v. Voorhis, 45 Misc. 104. 66 

‘‘ . Allen 17. Hagen, 170 N. Y. 46.182 

“ “ Arculariuk v. Mayor, 3 Johns. Cases, 79. 185 

^ Benton v. Vail, 20 Wendell, 12.'..... 188 

Beverforden v. Bauer, 137 App. Div. 67.185 

“ Bishop 17. Palen, 74 Hun, 289. 27 

“ . . “ Bonheur v. Christ, 208 N. Y. 6. 24 

Borgia v. Doe, 109 App. Div. 670. .10,107,160, 171 

“ Bradley 17. Shaw, 133 N. Y. 493. 5' 

Brink 17. Way, 179 N. Y. 174. 172 

“ Brooks 17. Bush, 22 App. Div. 363. 177 

“ Brown V. Freisch, Law Journal, June 28, 1915, 

reversing 153 Suppl. 277.135, 172-3 

• Brown v. Tighe, 146 App. Div. 491. 179 

'' “ Bungart i7. Wells, 57 App. Div. 140.182, 183 

- Caliban i7. Hunt, 75 App. Div. 33.81,116, 166 






































Table of Cases 


XIX 


PAGE 

People ex rel. Cantor v. Seid, Law Journal, February 13,1915. 173 

‘ “ Cantor u. Canvassers, 165-App. Div. 142.173 

“ • . Clancy u. Bingham, 123’App. Div. 226.! 163 

“ ‘‘.-• Clancy v. Supervisors,^ 139 N. ¥.*524...'. 23 

“ -. •- Clark u.' Keeper, 176 N. Y. 466.'.... .178,179, 182 

■ “ ■ “ Coffey V. Democratic Committee, 164' N. Y. 

. 335. . . .'..32, 34 


Corscadden u. Howe, 177 N. Y. 499. 185 

Courtney v. Unger, 85 App. Div. 249. 123 

Dailey v. Livingston, 79 N. Y. 279. 188 

Danziger v. House of Mercy, 128 N. Y. 180... . 184 

Da\les-v. Cowles,' 13 N. Y. 350....12, 66 

Deister r, Wintermute, 194 N.‘ Y.'99.4,23, 189 

. Deitz V. Hogan, 214-^N. Y. 216. .' .12,31,66,68, 129 

• Demarest v. Fairchild, 67 N. Y. 334. 186 

• Derby r. Rice, 129'N. Y.’461...... 116 

• Dolan V. Lane, 55 N.-Y. 217.- . 185 

Driscolb V. Bender, 82 Misc. 671. . 14 

• Faile r* Ferris, 76 N. Y. 326. 185 

• Farley-r. Crane, 94 App. Div. 397.182, 184 

Feeny v. Board-of-Canvassers, 156 N. Y. 36.. 41 

• - • - ^ • ••123,124,125,129, 131 

- Garvey v, 'Democratie Committee, 175 N. Y. 415. 34 

Geer v. Common Council, 82 Nl Y: 575. 160 

Goring v. WappingeFs Falls, 144 N. Y. 616. . 12 

- > * ^ • • 67, 68 

Hahn r. Republican Committee, 124 App. Div. 

427. -..A......:. 34 


“ -Hart V. Goodrich, 92 App. Div. 445, affirmed 180 


.. -N. Y. 522.. 21 

Hatfield v. Comstock, 78 N. Y. 356. 26 

“ Hatzel r. Hall, 80 N. Y. 117. 186 

“ • Hayes v. Edwards, 42 Misc. 567.. .■. 66 

“ • Henness v. Douglass, 142- App. Div. 224. 174 

“ Hirsh V. Wood, 148 N. Y. 142. .*.. 65 

“• Hotchkiss V. Corwin, 152 App. Div. 920. 139 

“ • Hotchkiss V. Smith, 206 N. Y. 231.. .5,7,87,88, 159 

“ Howie V. Warden, 207 N. Y. 354.'..178 

“ Hubert t\ Kaiser, 206 N. Y. 46....'. 177 

“ Jackson v. Potter, 47 N. Y. 375. 3 

“ Judson r. Thacher, 55 N. Y. 525.186,188, 189 






























XX 


Table of Cases 


PAGE 

People ex rel. Kathan v. Board of Canvassers, 75 App. Div. 


no. 116 


a 

u 

Kemmler v. Durston, 119 N. Y. 569.... 

. 3 

a 

u 

Kingsley v. Pratt, 22 Hun, 300. 

. 181 

a 

a 

Kuhn V. House of Mercy, 133 N. Y. 207. 184 

a 

(( 

Krulish v. Fornes, 175 N. Y. 114. 

. 123 

u 

a 

Lardner v. Carson, 155 N. Y. 491. 

...4,18, 22 

a 

a 

Lazarus r. Sheehan, 128 App. Div. 743. 

.185 

(( 

u 

Lewis V. Brush, 146 N. Y. 60. 

.185 

u 

u 

Livingston v, Wyatt, 186 N. Y. 383.... 

....179, 180 

(( 

u 

Lower v. Donovan, 135 N. Y. 76. 

.176 

u 

u 

McAuley v. Wahle, 124 App. Div. 762. 

.180 

u 

u 

McCarren v. Dooling, 128 App. Div. 1, 

affirmed 



193 N. Y. 604. 

. 147 

u 

ii 

McLaughlin v. Ammenwerth, 197 N. Y. 

340.... 174 

ti 

li, 

McLaughlin v. Police Commissioners, 174 N. Y. 



450. 

.. 185 

u 

a 

McShane v. Hagen, 48 App. Div. 203, 

affirmed 



164 N. Y. 570. 

. 17 

a 

li 

March v. Beam, 188 N. Y. 266. 

....172, 173 

u 

a 

Maxim v. Ward, 62 App. Div. 531. ... 

.173 

u 

li 

May V. Strang, 137 App. Div. 848_ 

... .174, 175 

(( 

li 

Moran v. Sniffin, 123 App. Div. 730... 

.. ..127, 132 

{( 

a 

Munro v. Board of Canvassers, 129 N. Y. 469.. 116 

{{ 

li 

Nichol V. Asylum, 122 N. Y. 190. 

. 185 

u 

li 

Nichols V. Board of Canvassers, 129 

N. Y. 



395. 

..32,66, 121 

u 

li 

Noel V. Smith, 10 Misc. 100. 

. 95 

a 

li 

Noyes v. Board of Canvassers, 126 N. Y. 392.. . 116 

u 

li 

Chert V. B'ourke, 30 Misc. 461. 

:.129 

a 

li 

Perkins v. Moss, 187 N. Y. 412.. .180,181,183, 184 

u 

ii 

, Perry v. Board of Canvassers, 88 App. Div. 185. 175 

u 

ii 

Perry v. Hagan, 25 Misc. 125. 


li 

li 

Pierce v. Parkhurst, 24 Misc. 442. 

. 127 

ii 

ii 

Quinn v. Voorhis, 187 N. Y. 327. 

. 99 

u 

ii 

Requa v. Neubrand, 32 App. Div. 49... 

. 185 

u 

ii 

Reynolds v. Warden, 44 Misc. 149. 

. 184 

u 

ii 

St. Clair v. Davis, 143 App. Div. 579.. 


u 

ii 

Sampson v. Dunning, 113 App. Div. 35 

1. 180 

u 

ii 

Sandman v. Tuthill, 79 App. Div. 24.. 

.180 


































Table of Cases 


XXI 


PAGE 


People ex rel. Sherwood v. Board of Canvassers, 129 N. Y. 


a 

(( 

u 

li 

u 

li 


u 

u 

u 

ii 

li 

ii 

ti 

u 

ii 

li 

ii 

li 

li 

li 

li 

li 

li 

ii 

ii 

ii 

li 

li 

li 

li 

li 


li 

li 

ii 

ii 

a 

ii 


li 

li 

li 

ii 


u 

ii 

ii 


ii 

ii 

li 

ii 

ti 

ii 

ii 

li 

u 

li 

ii 

It 

u 


u 

ii 

ii 

ii 

it 


360.10,171, 

Sherwood v. Rice, 129 N. Y. 391. 

Simmons v. Ham, 56 Misc. 112. 

Smith V. Pease, 30 Barbour, 588. 

Smith r. Pease, 27 N. Y. 45...188, 

Smith V. Schiellein, 95 N. Y. 124. 


Smith V. Van de Carr, 86 App. Div. 9, appeal 

dismissed 183 N. Y. 569. 

Smith V. York, 34 Misc. 120. 

Stapleton v. Bell, 119 N. Y. 175.10, 

Steinert v. Britt, 146 App. Div. 683. 

Stemmier v. McGuire, 2 Hun, 269, affirmed 60 

N. Y. 640. 

Sturgis V. Fallon, 152 N. Y. 1. 

Sturtevant v. Armstrong, 116 App. Div. 103_ 

Tuers v. Dooling, 141 App. Div. 918, affirming 

69 Misc. 391. 

Tweed v. Liscomb, 60^ N. Y. 559. 

Van Riper v. Catholic Protectory, 106 N. Y. 604. 

VanSickle v. Austin, 20 App. Div. 1. 

Wall V. Britt, Law Journal, October 16, 1913. . 

84, 

Ward V. Roosevelt, 151 N. Y. 369. 

Ward V. Scheu, 167 N. Y. 292.26, 

Watkins v. Board of Canvassers, 25 Misc. 444.. 

Watkins v. Perley, 80 N. Y. 624. 

Wells V. Common Council, 154 N. Y. 7^50.... 
White V. Board of Aldermen, 157. N. Y. 431 .... 

White V. Supervisors, 192 N. Y. 539. 

Willett V. Quinn, 150 App. Div. 813. 

Williams v. Board of Canvassers, 183 N. Y, 


538.65, 

Williams v. Dayton, 55 N. Y. 367. 

Wood V. Draper, 24 Barbour, 265. 

Woodruff V. Britt, 206 N. Y. 246...5, 

Woods V. Crissey, 91 N. Y. 616.12,31,66, 

Wren v. Goetting, 133 N. Y. 569. 


175 
116 

85 
107 
189 
174 

178 
46 
12 

86 

188 

2 

174 

168 

179 
184 

176 
72 
85 
57 
99 

175 
188 
127 
174 
172 
182 

115 

3 

184 
88 
68 

185 


Q 

Queen v. Justices of Schropshire, 8 A. & E. 173 


21 




























Table of Cases 


xxii 


R PAGE 

Rabbitt Garand,. 89 App. Div. 119., u. i,..___ i.. ;.. 165 

Rogers v. Common Cpuncil, 123 N. Y. 173. .. 26 

Rnpert Vf Rees, 212 N, Y. 514..,. ----- .19, 92 


Saint Joseph Township v. Rogers, 16 .WaU. 644,.. 22 

Sch’iefeelin r. Britt, 150 App. Div. 568, affirmed 206 N. Y. 677... 160 

Schieffielin v. Komfort, 212 N. Y. 520.. .20,27,158, 176 

Seaman v. Baughman, 82 Iowa, 216,... 21 

Seneca Nation v. Jime^on, 62, Misc. ,91....... ... 185 

Sheehan v. McMal^, 44 App. Div. 63,.... . 147 

Sherrill v. O’Brien, 188 N, Y. 185... 1 

Silvey v. Lindsay, 107 N> Y. 55..... __,. y.. 17 

State ex rel. Barker v, Bowen, 8 S. Q. 400. 135 

'' '' MeCue u. Blaisdell, 18 N, D. 55...,.^. 135 

- “ McDill V. Board of Canvassers, 36 Wis. 498 - 135 

“ Morris v. Wrightson, 56 N, J. L. ,126..... ..i 159 

(( u Porter v. Crook, 126 Ala. bOO. -... 21 

“ “ Stock u. Schnierle,, 5 Rich. 299.. .i..,.. 21 

Smith, A). Proctor, 138 N.. Y. 319.. 22 

Stemmier v. Mayor, 179 N. Y. 473.;_.;. 189 

Stroud 1 ).-Water,,Co.., 56 N. J. L. 422...,../.,......... 21 

Stryker v. Churchill, 39 Misc. 578. 27 

Swart V. Rickard,. 74 Hun^ 339. ..- 181 

Swart V. Rickard, 148 N. Y. .269. ... . .y ..... 181 


Tamney V. Atkins, 209 N. Y. 202./'V.. .132,157, 174 

Tanzer v. Breen,. 139 App. Div. 10.__ .144, 181 

Tappen v. Gray, 9 Paige, 507, affirmed 7 Hill, 259 . . .. 184 

Thacher v. Lent, 71 App. Div! 483.. ^.125, 129 

Thornton v. Washington^ 3 Wash. Terr. N. S. 482,... 21 

Todd r. Election Commissioners, 104 Mich. 474.,.. 6 

Trounstihe v.' Britt, 212 N. Y. 431.. 25 

. Y — . 

Vass V. Britt, 209 N, Y. 557....... V....... 65 

. . . • ■ • 

Walker v. Lathrop, 210 N. Y. 434. 

Walsh V. Church, 115 App. Div. 82 
Warner r. Perry, 14 Hun, 337..... 


185 

165 

183 
































^art jfitit 

THE CONSTITUTION 


ARTICLE I 

THE CONSTITUTION AND ITS INTERPRETATION 

Tripartite System: The constitution of the State of 
New York, adopted in 1894, recognizes the tripartite 
system of government which is the foundation of 
American liberty. (Kilbourn v. Thompson, 103 U. S. 
168.) The legislative department makes the laws, 
while the executive executes and the judiciary con¬ 
strues and applies them. (Matter of Davies, 168 
N. Y. 89; Matter of Guden, 171 N. Y. 529.) The con¬ 
stitution vests the legislative power in the senate and 
assembly (Constitution, Article 3, Sec. 1), the execu¬ 
tive power in the governor (Article 4, Sec. 1), while 
the courts are vested with jurisdiction in law and 
equity. (Article 6.) Each, within its sphere, is in¬ 
tended to be independent of the others. (Matter of 
Eeynolds, 144 App. Div. 458.) 

Legislative Power: In view of the fact that the con¬ 
stitution confers the legislative power upon the senate 
and assembly, any and all legislation is a valid exer¬ 
cise of legislative power unless it violates some pro¬ 
vision of the constitution. The general legislative 
power is absolute and unlimited, except as restrained 
by the constitution. (People v. West, 106 N. Y. 293; 
Sherrill v. O’Brien, 188 N. Y. 185, 199.) The legis¬ 
lative power has no other limitation. The theory that 
laws may be declared void when deemed opposed to 
natural justice and equity, although they do not vio- 
[ 1 ] 


2 


The New York Election Laws 


late any constitutional provision, has been repudiated 
by numerous authorities. (Bertholf v. 0 ^Reilly, 74 
N. Y. 509, 514-515.) Courts do not sit in review of 
the discretion of the legislature or determine upon the 
expediency or wisdom or propriety of legislative 
action. (People ex rel. Sturgis v, Fallon, 152 N. Y. 
1, 11.) They have repeatedly declared that there is 
room for much bad legislation and misgovernment 
within the pale of the constitution, but, whenever this 
happens, the remedy which the constitution provides, 
by opportunity for frequent renewals of legislative 
bodies, is far more efficacious than any which can be 
afforded by the judiciary. (People v. Draper, 15 N. Y. 
532, 545; Kittinger v, Buffalo Traction Co., 160 N. Y. 
377, 388-389.) 

Election Laws; There is nothing peculiar about 
election laws in any of these respects. Subject to the 
restrictions and limitations of the constitution, the 
power of the legislature to enact election laws is abso¬ 
lute and uncontrollable (Ahern v. Elder, 195 N. Y. 
493); and before a court declares a statute invalid 
which makes any enactment in relation to elections, 
it should clearly appear that the statute is irreconcil¬ 
able with the constitution. (Hopper v. Britt, 203 
N. Y. 144.) 

Implied Unconstitutionality: In determining the 
constitutionality of a statute, regard must be had, not 
merely to the constitution itself, but to the decisions 
of the court interpreting the constitution, for, under 
the constitution, it is the courts which must determine, 
in the last analysis, whether or not the legislature, in 
a given case, has violated the provisions of the con¬ 
stitution. A statute which violates the express terms 
of the constitution is obviously unconstitutional, and 
the determination of that fact involves no difficulty; 


The Constitution 


3 


but, since no constitution was ever drawn so as to be 
an effective foundation for the government of a state, 
without applying thereto the doctrine of implication, 
the courts have also held that whatever is necessary 
to render effective any provision of a constitution 
must be deemed implied and intended in the provision 
itself. (Fraser v. Brown, 203 N. Y. 136.) In other 
words, constitutions, like other instruments, neces¬ 
sarily contain certain propositions which the instru¬ 
ments import, as well as those they expressly and in 
terms assert. Therefore, legislation contravening 
what a constitution necessarily imports is void equally 
with the legislation contravening its express com¬ 
mands. (Hopper V. Britt, 203 N. Y. 144.) 

Principles of Construction: There are many settled 
principles which may be invoked in the interpretation 
of constitutional provisions. A cardinal rule in deal¬ 
ing with constitutions is that they should receive a 
consistent and uniform interpretation. (6 Ruling 
Case Law, Sec. 39.) Among the other familiar rules 
of construction, particularly those that may be invoked 
in determining the constitutionality of election laws 
are the following. Every act of the legislature must 
be presumed to be in harmony with the fundamental 
law unless the contrary is clearly made to appear. 
(People ex rel. Kemmler v. Durston, 119 N. Y. 569, 
577.) A constitution is to be construed as prepared 
and adopted in reference to existing statutory laws 
upon the subject. (People ex rel, Jackson v. Potter, 
47 N. Y. 375, 380.) The practical construction of a 
provision by the legislature is entitled to the greatest 
weight.’’ (People ex rel, Williams v, Dayton, 55 
N. Y. 367, 378; New York v. City Railroad, 193 N. Y. 
543, 549.) An arrangement made by law for enabling 
the citizens to vote should not be invalidated by the 


4 


The New York Election Laws 


couii:, unless the arguments against it are so clear 
and conclusive as to be unanswerable.’’ (People ex 
^eLlLardneivt;. Carson, 155 N. Y. 491, 501.) 


ARTICLE II 

FRANCHISE, RIGHTS AND PRIVILEGES OF MEMBERS 
OF THE STATE 

Franchise of Voters: The constitution provides that 
‘‘no member of this state shall be disfranchised, or 
deprived of any of the rights and privileges secured 
to any citizen thereof, unless by the law of the land 
or the judgment of his peers.’’ (Article 1, Sec. 1.) 
It also defines the qualifications and disqualifications 
of'Voters (Article 2, Sec. 1), and expressly authorizes 
the legislature to make laws “for ascertaining, by 
proper proofs, the citizens who shall be entitled to the 
right of suffrage.and for the registration of voters.” 
(Article .2, Sec. 4.) 

Voting: The constitution thus guarantees freedom 
in voting (Hopper v. Britt, 204 N. Y. 524) and the 
power of the legislature to regulate elections must be 
so exercised as not to deny or impair the franchise, 
rights and privileges of members of the state. (Mat¬ 
ter of Callahan, 200 N. Y. 59.) Any method of hold¬ 
ing an election which would deprive voters free from 
fault or personal misfortune of the right of casting 
their ballots and having effect given to the votes so 
cast is unconstitutional. (People ex rel. Deister v. 
Wintermute, 194 N. Y. 99, 108.) 

.Nominating: The voter^s franchise is not only the 
right to vote for public officers at-general and special 
elections, but it also includes the .right to participate 
in the general metliods established by law for the 


The Gonstitutioh 


5 


selection, of candidates to be voted for. (Burke v,. 
Terry, 203 N. Y, 293; People ex rel. Hotchkiss v. 
Smith, 206 N. Y. 231.) 

Equality of Opportunity: The constitution requires 
equality of opportunity. The official balloti would 
be unconstitutional if it did not afford the illiterate 
voter an opportunity to vote by securing: assistance, 
and to every voter the right to vote for whom he 
chooses, by writing a candidate's name in one of the 
blank spaces. (People ex r.el. Bradley tJ. Sliaw^ 133 
N; Y. 493; Hopper i;. Britt, 203 N. Y. 144.) iTwould 
be unconstitutional if it allowed only the names of 
party candidates to be printed on the official ballot to 
the exclusion of candidates named by considerable 
bodies of citizens acting independently of party (Burke 
V. Terry, 203 N. Y. 293); and provisions requiring, a 
prohibitory number of signatures to independent 
nominating certificates are obviously unconstitutional. 
(People ex rel. Hotchkiss v. Smith, 206 N. Y.. 231; 
People ex rel. Woodruff v. Britt, 206 N. Y. 246; Mat¬ 
ter of O’Brien, 206 N. Y. 694.) Legislation must not 
discriminate in favor of one set of candidates against 
another set of candidates, and a provision whicli pro¬ 
hibits a committee of a party from nominating a can¬ 
didate already nominated by another party or inde¬ 
pendent body is unconstitutional. (Matter of Calla¬ 
han, 200 N. Y. 59.) 

Name on Ballot Only Once: Prior to the substituf 
tion of the Massachusetts form of ballot for the party 
column ballot, which was in use for many years prior 
to December, 1913, it was held that the principle that ^ 
equality of opportunity must be afforded to all voters^ 
rendered invalid a provision that the name of a can¬ 
didate should be printed but once upon the party 
column ballot. The effect of the provision, as applied 




6 


The New York Election Laws 


by the legislature to the party column ballot, was to 
permit the voters of one party to vote for all the candi¬ 
dates of that party by making a single cross-mark, 
while it required the voters of the other party to make 
two cross-marks in order to vote such a straight 
ticket; and the precise decision of the court was that 
the constitution guarantees to the voter the right to 
express his will by a single mark if others are given 
the right to express their will by a single mark. 
(Hopper V. Britt, 203 N. Y. 144; Hopper v. Britt, 204 
N. Y. 524.) These decisions related solely to a par¬ 
ticular provision as applied to the old party column 
ballot and the courts declined to follow the decision of 
the courts of several states upholding election laws 
with similar provisions (Todd v. Election Commis¬ 
sioners, 104 Mich. 474.) They have no bearing on the 
question of the constitutionality of the Massachusetts 
form of ballot because the Massachusetts ballot law 
requires every voter alike to make a separate cross 
for each and every candidate for whom he wishes to 
vote and thus atfords precise equality to all. 

Emblems: There are dicta to the etfect that em¬ 
blems are necessary.^’ (Hopper v. Britt, 204 N. Y. 
524.) It would seem, however, that, so long as the 
ignorant voter has some method by which to be in¬ 
formed as to the candidates for election, an emblem 
is not indispensable. It would, however, be unfair 
discrimination to permit one set of candidates to have 
an emblem and to prohibit another set of candidates 
from having an emblem; although, before emblems at 
primaries were abolished, it was held that a provision 
conferring on the party machine the right to use a 
party emblem at primaries as against other party 
members was constitutional. (Hopper v. Britt, 204 
N. Y. 524.) 


The Constitution 


7 


Proper Safeguards for Independent Nominations: 

Where nominators, in filing an independent nomi¬ 
nating certificate, choose to file several separate sheets 
of signatures, the legislature may lawfully provide 
that no such separate sheet shall be received, if five 
per cent of the names thereon are fraudulent or 
forged. Such a provision, while it may tend to throw 
out valid signatures because of invalid ones on the 
same sheet, is nevertheless constitutional; for it does 
not necessarily throw out valid signatures, since the 
etfect of the provision may be obviated either by using 
a single sheet or by filing a separate sheet for each 
signature. (Burke v. Terry, 203 N. Y. 293.) A pro¬ 
vision that the name of no person signing an inde¬ 
pendent certificate of nomination shall be counted 
unless the signer is or becomes registered has been 
sustained as tending to prevent fraud and to make 
more certain the good faith of the signers; and a pro¬ 
vision prohibiting an enrolled member of a party from 
signing an independent certificate of nomination for 
a candidate of his own party for the same office, has 
also been sustained us tending ‘ ‘ to prevent a wrong¬ 
ful use of independent nominations.’^ (People ex rel. 
Hotchkiss V, Smith, 206 N. Y. 231; post, p. 86.) 


ARTICLE III 

QUALIFICATIONS AND DISQUALIFICATIONS 

Qualifications: The constitution prescribes the 

qualifications and disqualifications of voters. The 
qualifications are as follows: Male sex. Twenty-one 
years of age. A citizen for ninety days. An inhab¬ 
itant of the state for one year. A resident of the 
county for four months. A resident of the election 


8 


The New York Election Laws 


district for thirty days. These qualifications entitle 
the voter to vote at the election in the election district 
of which he, at the time, shall be a resident (and not 
elsewhere) for all offices that are made elective by 
the constitution and upon all questions submitted. 
(Article 2, Sec. 1.) 

Male Suffrage: Constitutional officers can onl)^ be 
voted for by males. (Matter of Gage, 141 N. Y. 112.) 

Woman’s Suffrage: The legislatures of 1913 and 
1915 agreed to a constitutional amendment authoriz¬ 
ing woman’s suffrage, by striking from the constitu¬ 
tion the word male ” and making it clear that a 
voter, otherwise qualified, may vote regardless of the 
sex to which he ‘‘or she ” belongs, but containing a 
limitation that ‘ ‘ a citizen by marriage shall have been 
an inhabitant of the United States for five years.” 
Unless the constitutional convention of 1915 otherwise 
directs, this amendment must be submitted to the peo¬ 
ple for approval at the general election in 1915. If so 
approved by the people, it will become a part of 
the constitution from and after January 1, 1916. 
(Article 14, Sec. 1.) 

Majority: A man becomes of age the day before his 
twenty-first birthday. (Hancock, A.-G., A.-G. Hep. of 
1897, p. 301; A.-G. Rep. of 1898, p. 283.) 

Thirty Days: The thirty days’ residence required 
must be complete on the day of election and, in com¬ 
puting the time, the first and the last days cannot both 
be counted. (People v. Brennan, Bischoft*, J., Law 
Journal, October 25, 1901.) 

Disqualifications: The disqualifications consist in 
the improper use or receipt of money in connection 
with elections and wagering on the result of elections. 
Upon challenge for such cause, the person so chal¬ 
lenged, before the officers shall receive his vote, shall 



The Constitution 


9 


swear or affirm that he has not done any of the acts 
prohibited. The legislature is directed to enact laws 
excluding from the right of suffrage all persons con¬ 
victed of bribery or any infamous crime. (Article 2, 
Sec. 2.) 

Legislative Powers: The constitution thus pre¬ 
scribing the qualifications and disqualifications of 
voters, the legislature is without power to prescribe 
additional qualifications or disqualifications. It may 
enact laws excluding persons convicted of bribery or 
any infamous crime. It may make laws for ascertain¬ 
ing, by proper proofs, who are entitled to the right of 
suffrage and for the registration of voters (Article 2, 
Sec. 4), but, at that point, its powers end; and the 
courts, from time to time, have been called upon to 
determine whether some requirement of the election 
law amounts to an additional qualification, or whether 
it is a proper law for ascertaining, by proper proofs, 
who is entitled to the right of suffrage. So long as 
laws do not add to the qualifications required of 
electors by the constitution, the legislative will is 
supreme. (Ahern v. Elder, 195 N. Y. 493.) 

Additional Oath: At or about the close of the Civil 
War, the legislature passed a law requiring voters to 
take oath that they had never voluntarily borne arms 
against the United States, and it was held that this 
amounted to the creation of a disability and a restric¬ 
tion of the right of suffrage and was unconstitutional. 
The provision was also held to be unconstitutional in 
that it deprived the voter of his rights without regard 
to the law of the land. (Creen v, Shumway, 39 N. Y. 
418.) 

Signing Register: In a more recent case, the courts 
considered a provision of the election law relating 
exclusively to cities of a million or more inhabitants. 


10 


The New York Election Laws 


requiring the elector, at the time of registration, to 
sign his name in the registry book, and, in a case 
where he could not write, to undergo additional cross- 
examination, and held that this provision did not pre¬ 
scribe an additional qualification, but, on the contrary, 
its general scope was such as to bring it within the 
express command of the constitution, and that it was 
a reasonable regulation designed to secure accurate 
information concerning the qualifications of voters, 
including a proper method of identification. (Ahern 
V. Elder, 195 N. Y. 493.) 

Absolute Right to Vote; Election Officers: The 

courts have repeatedly held that, under the system of 
elections in New York, inspectors of election act only 
ministerially, and when a person legally qualified 
offers to vote and is willing to take the general oath 
prescribed by statute and takes it, his vote must he 
received (People ex rel. Sherwood v. Board, 129 
N. Y. 360), even though he refuses to answer some 
question other than the statutory questions (Goetcheus 
V, Matthewson, 61 N. Y. 420), or his answers are un¬ 
satisfactory (People ex rel. Stapleton v* Bell, 119 
N. Y. 175), or some one else has previously voted on 
his name. (People ex rel. Borgia v. Doe, 109 App. 
Div. 670.) An attempt to arrest a voter when he de¬ 
mands to be allowed to vote is itself a violation of the 
constitution. (People v. Hochstim, 76 App. Div, 25.) 
It, therefore, would seem that a statute which attempts 
to confer judicial power upon inspectors and author¬ 
izes them to determine summarily the right of the voter 
to vote would violate a voter’s constitutional rights, 
and the courts have so held. Thus, in a case where 
certain inspectors claimed the right to act on inde¬ 
pendent knowledge and to refuse to allow certain per¬ 
sons to vote, although the latter had satisfied the statu- 


The Constitution 


11 


tory test, Gray, J., speaking for an unanimous court 
of appeals, said : I must say, that, to my mind, this 

claim is as unreasonable, as it is absolutely lacking in 
support in the fundamental, or in statutory law. It 
is repugnant to fundamental principles and to author¬ 
ity. I may fairly premise what brief discussion I may 
feel bound to enter upon, in connection with the law 
regulating elections in this state, with the remark, 
that if these appellants are right in their contention, 
then a way is made possible to perpetrate a great out¬ 
rage upon the rights of electors. Under the present 
scheme of nonpartisan boards of election inspectors, 
wherein the principal political parties in the state are 
intended to have equal representation, by a con¬ 
tumacious refusal of party adherents to sign an elec¬ 
tion return, based on the pretense that they were not 
satisfied in their minds that all of the ballots taken 
were cast by qualified and registered electors, the dis¬ 
franchisement of all the electors in the election district 
could be effected. They could prevent the reception 
of a ballot from a proposed elector, on their theory 
that a ballot is not finally received until by action of 
the majority of the board; for they would only have 
to oppose to the proofs required by the election law and 
made by the person, their mental convictions that, 
notwithstanding them, he was not the elector he swore 
he was. I do not, and cannot think such a result was 
ever intended, or can be fairly reached upon a consid¬ 
eration of the law. It is inconceivable that any such 
power should be lodged in election inspectors; or that 
they should be clothed with a discretion to reject a 
ballot offered by a proposed elector, whose qualifica¬ 
tions, in case of challenge, are proved by the statu¬ 
tory methods. ... To say that the right of the 
elector to cast ballot is subject to board action is 


12 


The New York Election Laws 


equivalent to saying that they have power to decide 
upon the evidence as to the unlawfulness of the vote. 
That cannot be so. That would permit of an elector’s 
rights being adjudged away and himself disfranchised, 
and on only such evidence as the statute prescribes. 
The lawfulness of a vote cannot be determined until 
it has'been received, and an elector’s rights cannot be 
annulled without.a.trial, where he may have an oppor- 
tunify of bringingLorward his proofs and ha^dng them 
passed upon in; a proper way and by a proper tribunal. 
To hold any other doctrine we would have to disregard 
the spirit of our laws and the fundamental idea of an 
electoral franchise.” (People ex rel. Stapleton v. 
Bell, 119 N. Y. 175.) 

Extent of Right: So long as an election is not a 
mere matter of stratagem and artifice (People ex 7'el. 
Woods V. Crissey, 91 N. Y. 616, 634-635; People ex reh 
Deitz t?. Hogan, 214 N. Y. 216), where the constitution 
or a statute requires a special election on the day of 
a general Cilection and the name of the office does not 
appear on the ballot, the voter has a ‘ Lconstitutional 
right ’ ’ to write in both the name of the office and of 
his candidate therefor. (People ex re/. Davies v. 
Cowles, 13 -N. Y. 350; People ex rel. Goring v, Wap- 
pingers Palls, 14417. Y. 616; see post,^ 66.) 


ARTICLE IV 
RESIDENCE 

The Constitution: The constitution provides that 
every male citizen of a specified age, citizenship and 
inhabitancy, who shall have been for the last four 
months a resident ” of the county and for the last 
thirty days a ''resident” of the election district in 



The Constitution 


13 


which he may offer his vote,, shall he entitled to vote 
at such election in the election district of which he 
shall at the time he a ‘‘ resident/’ (Article 2, Sec. 1.) 
The constitution does not attempt to define or limit 
the term ‘ ‘ resident ’ ’ and the necessary effect of 
its language is to confer upon any voter, if he is a 
‘ ‘ resident, as a matter of fact, the franchise, rights 
and privileges of members of the state. (Article 1, 
Sec. 1.) In other words, the legislature has not power 
to abrogate the franchise of a resident,” in the 
broadest sense of the word, nor has it power to confer 
the right to vote on an individual who is not such a 
“ resident.” 

Judicial Definition: The courts have recognized 
and applied the admitted truth, acted upon at every 
election, that the voting residence may be in one 
place and the actual abode in another.” (Matter of 
Goodman, 146 N. Y. 284^ 288.) If a voter has only 
one residence, that is obviously the only place from 
which he may register and vote, but proof of one resir 
dence does not disprove another residence. Many 
voters have more than one residence, their old home 
and a new place of sojourn, a town and a country 
home, or two places of abode in the same locality ; 
and the courts recognize that a voter who has- two 
residences may elect to make a domicile or voting, resi¬ 
dence of either. (Matter of Newcomb, 192.N. Y,.238, 
252.) In such cases the voter’s residence for the 
purpose of voting depends on a union of residence 
and intention (Matter of Kewcomb, 5wpra, at p. 250), 
and thus becomes a question of the voter’s intent, 
which can be known with certainty only to himself, with¬ 
out likelihood of contradiction. Thomas G. Platt, for 
many years voted at Owego and lived with his family 
in New York City, and the court of appeals recog- 


14 


The New York Election Laws 


nized that he had these two residences, and even held 
that his domicile was his voting residence at Owego. 
(People V. Platt, 117 N. Y. 159.) Similarly, it has 
been repeatedly held that absence, however long, so 
that it is not in abandonment of home, will not deprive 
a voter of his residence, though his absence extends 
through a series of years. (People v, Platt, supra; 
Hart V, Kip, 148 N. Y. 306, 309.) In 1906, Attorney- 
General Julius M. Mayer ruled that many citizens 
physically live in one place most of the time, yet take, 
and have the right to take, another place which they 
make their legal residence for voting purposes 
(Opinion of Mayer, A.-G., May 22, 1906); and in 
1911, Attorney-General Thomas Carmody rendered an 
opinion to Hon. Samuel J. Tilden, of New Lebanon, 
covering four different classes of cases, in each of 
which the voter had one residence at Pittsfield, Massa¬ 
chusetts, where he lived and worked, and yet sought 
to vote at New Lebanon, New York, which he declared 
to be his voting residence, and the attorney-general, 
after pointing out that a voting residence is very 
largely a matter of intention and so each case depends 
on its own peculiar facts,’’ held that I am of the 
opinion that upon the facts stated, they are entitled 
to vote at the election in your town.” (Opinion of 
Carmody, A.-G., March 8, 1911.) 

The so-called ‘‘ Gavegan decision ” (People ex rel. 
Driscoll V. Bender, 82 Misc. 671) had considerable 
public notice and deserves comment. It was rendered 
on the eve of the November, 1913, election and was 
a magistrate’s decision, rendered by a justice of the 
supreme court, who left the bench temporarily to sit 
as a magistrate. The precise decision was that a 
warrant of arrest should be issued, and the opinion 
was written upon a preliminary motion to dis- 


The Constitution 


15 


miss the proceeding. What the magistrate held was 
that the evidence before him showed beyond ques¬ 
tion that, at the time the defendant registered from 
Cherry street, he actually resided on Morningside 
East, and that the latter address was ‘ ‘ his permanent 
fixed place of abode or home.’^ Assuming that the 
evidence justified this finding, the decision can be sus¬ 
tained, but, if the language of the opinion be taken to 
mean that a voter who has several residences cannot 
legally elect any one of such residences as his voting 
residence, it is in conflict with the constitution and the 
law. In other words, the constitution confers a fran¬ 
chise upon a ‘‘ resident and if a voter is, as a matter 
of fact, a resident of two different places, neither 
the legislature nor the judiciary can limit the right of 
that resident to vote from any one of the two resi¬ 
dences which he, in due time, selects as his voting 
residence. The opinion states that ‘‘ a voting resi¬ 
dence as distinguished from the place where one actu¬ 
ally and habitually dwells is not recognized by law.’^ 
This is true with two modifications — first, that a 
voter, as in the case of Thomas C. Platt, having ac¬ 
quired a residence may return each year to that place 
to vote, although he ‘ ‘ actually and habitually ^ ’ dwells 
somewhere else, and second, that a voter who ‘‘ actu¬ 
ally (not habitually) dwells in more than one place 
may select his voting residence either from the one or 
from the other. 

As above stated, this opinion was written when the 
warrant for Bender’s arrest was issued. The indict¬ 
ment against him was subsequently dismissed. 

Mills Hotels and Other Irregular Homes: A voter 
may legally register from a lighter occasionally at¬ 
tached to a pier. (Matter of Collins, 64 How. Prac. 


16 


The New Yoek Election Laws 


63, Freedman, J.) Demolition of the voter resi¬ 
dence after registering does not atfect his right to 
vote therefrom. (Cunneen, A.-G., A.-G. Rep. 1903.) 
Where a voter has kept his voting residence at his 
former home, his son, on becoming of age, may vote 
from there also. (Ainsworth, A.-G., A.-G. Rep. of 
1906, p. 278.) In New York City the case frequently 
arises of a voter who is too poor to have a sleeping 
place every night, and the proofs show that he signed 
a book in a sleeping hotel, such as one of the Mills 
Hotels, more than thirty days prior to election and 
also signed the book on several occasions during the 
thirty-day period, although on other nights he prob¬ 
ably slept on a bench in a park or possibly even at 
another hotel of like character outside the election dis¬ 
trict. The New York constitution makes no distinc¬ 
tion based upon affluence or poverty nor upon learning 
or ignorance. A citizen and an inhabitant of the state, 
therefore, who becomes a resident of one of these 
sleeping hotels in the manner indicated may legally 
register and vote therefrom. (Jackson, A.-G., A.-G. 
Rep. of 1908, 412.) In other words, he is a resident 
of a hotel. As a matter of fact, it is the only fixed 
residence he has, and such being his ^ ‘ residence ’ ^ the 
only manner in which he can be deprived of his right 
to register his vote is by an amendment to the con¬ 
stitution. This is the position which has generally 
been taken on election day when commitments have 
been asked for against this class of voters, although 
occasionally some justice of general sessions or some 
magistrate has declined to find that, as a matter of 
fact, a voter has established any residence by sleep¬ 
ing a few nights at one of this class of hotels. 

Losing or Gaining a Residence: The constitution 
also contains a provision that, for the purpose of vot- 


The Constitution 


17 


ing, no person shall he deemed to have gained or lost 
a residence by reason of his presence or absence 
while employed in the service of the United States, 
or engaged in the navigation of the waters of this 
state, the United States or the high seas, or a student 
of any seminary of learning, or kept at any alms¬ 
house or other asylum or institution wholly or partly 
supported at public expense or by charity, or con¬ 
fined in any public prison. (Article 2, Sec. 3.) The 
plain reading of this provision is that the sojourn 
indicated has no effect whatever, one way or another, 
on the question of legal residence for the purpose of 
voting. (Matter of Barry, 164 N. Y. 18.) It does 
not mean that the voter cannot secure a new residence 
in his new place of sojourn, but it means that, in 
determining whether he has secured such a new resi¬ 
dence, the fact of his presence or absence is without 
any significance whatever. It settles a disputed ques¬ 
tion as to the effect of such presence, and declares that 
it does not constitute a test of a right to vote and 
is not to be so regarded. (Silvey v. Lindsay, 107 
N. Y. 55.) It is only in quite exceptional cases that the 
voter can secure a new residence under the circum-' 
stances specified (Matter of Goodman, 146 N. Y. 284) 
and most of the efforts to escape from the constitu¬ 
tional inhibition have failed. (People v, Cady, 143 
N. Y. 100 ; People ex rel. McShane v, Hagen, 48 App. 
Div. 203; affirmed 164 N. Y. 570; People v. Wright, 
N. Y. L. J. Dec. 8, 1914, Deuel, C. M.) The letter and 
spirit of the provision contemplate that the voter’s 
presence in one place and absence from another should 
be temporary in character and preserve his former 
residence, notwithstanding his absence therefrom. 
(Matter of Garvey, 147 N. Y. 117.) The mere intention 
to change his residence will not suffice. (Matter of 


18 


The New Yokk Election Laws 


Barry, 164 N. Y. 18.) The intention must exist, but 
must concur with and be manifested by resultant acts 
which are wholly independent and outside of the mere 
presence in the new district and should be very clear 
and convincing to overcome the natural presumption. 
(Matter of Goodman, 146 N. Y. 284.) 

Location of Polling Place: The provision of the con¬ 
stitution that a voter must vote in the election district 
of which he is a resident and not elsewhere,’^ means 
that he must vote at the polling place designated for 
such district. His vote is not void if the polling place 
is just without the district, so that he actually votes 
outside the district of which he is a resident. (People 
ex rel. Gardner v. Carson, 155 N. Y. 491.) 

Military Service: The constitution also provides 
that, in time of war, no elector in the actual military 
service of the state or of the United States, in the 
army or navy thereof, shall be deprived of his vote 
by reason of his absence from his election district. 
(Article 2, Sec. 1.) 


ARTICLE V 
REGISTRATION 

The constitution, while authorizing the legislature 
to make laws ^‘for ascertaining, by proper proofs, 
the citizens who shall be entitled to the right of suf¬ 
frage and for the registration of voters,’^ prescribes 
that- such registration ‘‘ shall be completed at least 
ten days before each election;’^ that it shall not be 
required for town and village elections except by 
express provision of law;’^ and that, '' in cities and 
villages having five thousand inhabitants or more, 
voters shall be registered upon personal application 
only; but voters not residing in such cities or villages 


The Constitution 


19 


shall not be required to apply in person for registra¬ 
tion at the first meeting of the officers having charge 
of the registry of voters. (Article 2, Sec. 4.) 

Registration Made a Felony: The provision direct¬ 
ing the legislature to make laws for the registration 
of voters was obviously violated by a law, signed by 
Governor Sulzer in 1913, to the effect that “ any per¬ 
son who shall make any application for registration, 
as required by the provisions of law relating to 
registration, “ shall be guilty of a felony.(Sec. 
184, as amended by Laws of 1913, Chapter 587.) This 
law was subsequently repealed. (Laws of 1913, Chap¬ 
ter 820.) 

Registration in Rural Communities: The provision 
requiring personal registration in cities and villages 
having five thousand inhabitants or more, and prohib¬ 
iting a requirement of personal registration, on the 
first day of registration, in rural communities outside 
such cities and villages, presents more serious diffi¬ 
culties. In 1911, however, it was authoritatively con¬ 
strued to mean that the legislature cannot enact laws 
requiring personal registration on the first day of 
registration in such rural communities, even as to first 
voters and citizens who did not vote at the last elec¬ 
tion, but “ proper proofs ’’ may be required by the 
legislature and, within the limits of reason, the nature 
of the proof is under its control, except that proof 
involving personal appearance cannot be required on 
the first day. Proof by affidavit or by the testimony 
of third persons may be required by statute so long 
as there is not an arbitrary selection of the affiants 
(Rupert V. Rees, 212 N. Y. 514), but if the proof so 
required is furnished at the first meeting, to the satis¬ 
faction of the inspectors, the legislature can neither 
authorize nor require those officers to refuse to regis- 


20 


The New Yokk Election Laws 


ter without the personal appearance of the applicant. 
(Fraser v. Brown, 203 N. Y. 136.) 

Schieffelin v. Komfort: Tlie most important litiga¬ 
tion respecting the provisions of the constitution in 
respect to registration is Schietfelin v. Komfort (212 
N. Y. 520; 163 App. Div. 741; 86 Misc. 678). The 
action was a taxpayer's suit for an injunction, re¬ 
straining the various boards of election throughout the 
state from taking the necessary steps for an election 
of delegates to the Constitutional Convention. The 
plaintiff contended (1) that he had proved that enough 
fraudulent votes had been cast to upset the majority 
certified to have been cast in favor of the question sub¬ 
mitted; (2) that the blank and void votes should have 
been counted as against the proposition; (3) that, 
inasmuch as Chapter 819 of the Laws of 1913, pursuant 
to which the question was submitted, did not provide 
for a new registration for such submission but only 
for a correction of the registration of 1913, it violated 
Section 4 of Article 2 of the constitution,, and (4) that 
that act was also unconstitutional in that it provided 
that the registration might be corrected on the second 
Saturday before the election, in that such provision 
did not comply with the provision of S'cction 4 of 
Article 2,. that registration shall be completed at 
least ten days before each, election.” The only two 
propositions urged at Special Term were the first and 
fourth. Seabury, J., denied the motion. He lield that, 
on. the figures presented to him, a clear majority of the 
voters voted in favor of the question submitted. On 
the fourth proposition, he held that Saturday, March 
28tli, was ten days before Tuesday, April 7th and was 
therefore in compliance and not in conflict with the 
provisions of the constitution. ‘‘ The fact that the 
registration is not completed at least two hundred and 
forty hours before the opening of the polls on election 



The Constitxjtioh 


21 


day does not render the statute in question offensive 
to the constitutional provision/’ It would be the 
extreme of technicality to seize upon a fraction of a 
day for ground for declaring unconstitutional an act 
of the legislature and to nullify a vote, of the people 
upon this proposition upon a ground so unsubstantial 
and immaterial.” His decision on this point is sup¬ 
ported by People v. Burgess (153 N. Y. 561, 573); 
Aultmaii V. Syme (163 N. Y. 54, 61); People ex rel. 
Hart V, Goodrich (92 App. Hiv. 445; affirmed on 
opinion of O’Brien, J., below, 180 N. Y. 522); State 
ex rel. Stock v. Schnierle (5 Eich. 299); and Stroud 
V. Water Co. (56 N. J. L. 422). In other words, Queen 
V. Justices of Shropshire (8 Adolph & Ellis, 173) is no 
longer the law of this state or country. The pre¬ 
vailing and apparently the modern rule is different.” 
(49 L. R. A., note, 203.) 

The Appellate Division, by a majority vote, indi¬ 
cated its opinion to be that, if the submission was an 
election within the meaning of Section 4 of Article 2 
of the constitution, the constitution was not com¬ 
plied with, because the act did not provide for an 
original registration of voters. It held, however, that 
Section 2 of Article 14 of the constitution, providing 
for the submission, was complete in itself and that the 
submission of a question to the voters is not an ‘‘ elec¬ 
tion. ” Its decision on the latter point is sustained by 
Thornton v. Washington (3 Washington Terr. n. s. 
482, 490); State ex rel. Porter v. Crook (126 Ala. 600); 
Mayor v. Shattuck (19 Col. 104, 112); Seaman v. 
Baughman (82 Iowa 216, 220); Coggeshall v. Des 
Moines (138 Iowa 730); Bew v. State (71 Miss. 1). 
While the majority of this court did not write any 
opinion on the question whether the blank and void 
ballots cast should have been counted as against the 


22 


The New York Election Laws* 


proposition, the necessary effect of its determination 
was that they should not be counted, and the court’s 
determination in this respect is supported by Smith v. 
Proctor (130 N. Y. 319); May v. Bermel (20 App. 
Div. 53); Hopkins v. Duluth (81 Minn. 189); City of 
Santa Eosa v. Bower (15 Pac. 829); St. Joseph Town¬ 
ship V. Eogers (16 Wallace 644); and Carroll v. Smith 
(111 U. S. 556). 

The Court of Appeals held that there was no au¬ 
thority for a taxpayer’s action (Matter of Eeynolds, 
202 N. Y. 430; County of Albany v. Hooker, 204 N. Y. 
19) and that the courts have no inherent power to 
supervise the acts of other departments of government 
unless the civil property or personal rights of a party 
to the litigation are affected. Jurisdiction, being the 
power to hear and determine, is not given to the courts 
as guardians of the rights of people generally against 
illegal acts of the executive or legislative branches of 
government.” The Court of Appeals expressly stated 
that nothing contained in its opinion should be con¬ 
strued as an intimation that, if the court had juris¬ 
diction of the subject of the action, it would deem the 
statute in question or the special election held there¬ 
under to be invalid. 

Indeed, it seems that, even if the constitution im¬ 
posed on the legislature the duty of providing for a 
registration for every general and special election and 
for every submission (a proposition which was strenu¬ 
ously urged by counsel for the plaintiff and strenu¬ 
ously opposed by counsel for the defendants), it would 
not necessarily follow that the failure of the legis¬ 
lature to make such registration would render nuga¬ 
tory the votes of a majority of those voting on a 
proposition at a special election. (People ex rel. Lard- 
ner v. Carson, 155 N. Y. 491, 502, 503; Opinions of 
Hon. Edgar M. Cullen and Francis Lynde Stetson, 


The Constitution 


23 


Esq., to Governor Glynn, March, 1914.) If this were 
otherwise, every one of the numerous special elections 
held since the enactment of the constitution of 1894 
would be unconstitutional. (See, however, McConaghy 
V. Secretary of State, 106 Minn. 392; Durfee v. Harper, 
22 Mont. 354; Ellingham v. Dye, 99 N. E. Rep. 1; and 
Louisiana v. American Sugar Refining Co., La. Su¬ 
preme Court,. May, 1915.) 

ARTICLE VI 
SECRECY 

The first constitution of the state (1777) directed 
the legislature as soon as might be possible after the 
termination of the Revolutionary War to pass an 
act for holding all elections by ballot (People ex rel. 
Deister v, Wintermute, 194 N. Y. 99, 104), and the 
present constitution provides that all elections by 
the citizens, except for such town officers as may by 
law be directed to be otherwise chosen, shall be by 
ballot, or by such other method as may be prescribed 
by law, provided that secrecy in voting be preserved. ^ ^ 
(Article 2, Sec. 5.) Voting machines are lawful. 
(People ex reL Deister v. Wintermute, supra.} Town 
officers may be elected, if the legislature so prescribes, 
by a show of hands. (People ex rel. Clancy v. Super¬ 
visors, 139 N. Y. 524, 528.) 

ARTICLE VII 
BIPARTISAN BOARDS 

The constitution provides that all laws creating, 
regulating or affecting boards of officers charged with 
the duty of registering voters, or of distributing bal¬ 
lots at the polls to voters, or of receiving, recording 
or counting votes at elections, shall secure equal rep- 


24 


The New York Election Laws 


resentation of the two political parties which, at the 
general election next preceding that for which such 
boards or officers are to serve, cast the highest and 
next highest number of votes. All such boards and 
officers shall be appointed or elected in such manner, 
and upon the nomination of such representatives of 
said parties, respectively, as the legislature may 
direct.^’ These provisions do not apply to town 
meetings, or to village elections.^’ (Article 2, Sec. 6.) 

These provisions have been construed to mean that 
the constitution places the administration of elections 
in these boards and the courts have no inherent power 
of review {post, p. 157). 

The reference to the highest and next highest votes 
cast is to votes cast in the state and not to votes cast 
in any particular locality. (Matter of Knollin, 59 
Misc. 373, affirmed, on opinion of Andrews, J.,- below, 
128 App. Div. 908, affirmed 196 N. Y. 526; Carmody, 
A.-Gr., A.-G. Rep. of 1913, 307, distinguishing People 
ex rel. Bonheur v, Christ, 208 N. Y. 6.) 


ARTICLE VIII 
PRIVATE OR LOCAL LAWS 

The constitution provides that the legislature 
shall not pass a private or local bill regulating the 
opening and conducting of elections or designating 
places of voting.’’ (Article 3, Sec. 18.) 

Legislation which imposes greater restrictions on 
voters in New York City than on voters in country 
districts does not necessarily violate this provision, 
and a law which requires voters in New York City, 
when registering, not only to answer a long list of 
questions, but also to sign their names, is constitu¬ 
tional. (Ahern v. Elder, 195 N. Y. 493.) 


The Constitution- 


25 


The constitution provides that all elections of city 
officers, including supervisors and judicial officers of 
inferior local courts, elected in any city or part of a 
city, and of county officers elected in the counties of 
New York and Kings, and in all counties whose bound¬ 
aries are the same as those of a city, except to fill 
vacancies, shall be held on the Tuesday succeeding 
the first Monday in November in an odd-numbered 
year, and the term of every such officer shall expire 
at the end of an odd-numbered year.’’ The obvious 
purpose of this provision is to separate the election 
of city officers from the election of state officers, so 
that the two would not occur in the same year. (Dele- 
hanty v, Britt, 212 N. Y. 457. See also Trounstine v. 
Britt, 212 N. Y. 421; Lynch v, Britt, 212 N. Y. 580.) 


ARTICLE IX 

VACANCIES IN PUBLIC OFFICE 

The constitution authorizes the legislature “ to pro¬ 
vide for filling vacancies in office,” but provides that, 
” in case of elective officers, no person appointed to 
fill a vacancy shall hold his office by virtue of such 
appointment longer than the commencement of the 
political year next succeeding the first annual elec¬ 
tion after the happening of the vacancy.” (Article 
10, Sec. 5.) The prohibition of this provision, how¬ 
ever, relates only to officers made elective by the con¬ 
stitution itself; and where the legislature creates an 
office, it may constitutionally provide that a person 
appointed to fill a vacancy therein may hold office 
beyond the commencement of the political year next 
succeeding the first annual election after the happen¬ 
ing of the vacancy, and for the full balance of the 


26 


The New York Election Laws 


term. If the legislature does so provide, an election 
to fill the vacancy at the first annual election after the 
happening thereof is unauthorized and void. (People 
ex rel. Hatfield v. Comstock, 78 N. Y. 356.) Similarly, 
the words, ‘‘ except to fill vacancies,’^ contained in 
the provision of the constitution providing that cer¬ 
tain municipal and other elections, except to fill va¬ 
cancies, shall be held in odd-numbered years (Article 
12, Sec. 3, ante, p. 25) are permissive and not manda¬ 
tory, and the legislature may constitutionally provide 
that a person appointed to fill a vacancy in an office 
created by it may hold office beyond an even-numbered 
year, until the first day of January after the next 
municipal election in an odd-numbered year. (People 
ex rel. Ward v. Scheu, 167 N. Y. 292.) 


ARTICLE X 
OATH OF OFFICE 

The constitution provides that members of the legis¬ 
lature and all officers, executive and judicial, except 
such inferior officers as shall be by law exempted, 
must take an oath, therein prescribed, before they 
enter on the duties of their respective offices; and no 
other oath, declaration or test shall be required as a 
qualification for any office of public trust. (Article 
13, Sec. 1.) 

Construing this constitutional provision, it has been 
held that the imposing of a test, by means of which 
to secure the qualification of a candidate of a nature 
to enable him to properly and intelligently perform 
the duties of the office, does not violate this provision 
(Rogers v. Common Council, 123 N. Y. 173, 186-190); 
but statutes have been held to be unconstitutional 


The Constitution 


27 


which penalize, with forfeiture of office, an excise com¬ 
missioner who fails to take an oath that he is not in¬ 
terested in the manufacture or sale of intoxicating 
liquors (People ex rel. Bishop v. Palen, 74 Hun 289); 
or a candidate who shall fail to file a statement 
of his election expenses within a prescribed period 
after election. (Striker v, Churchill, 39 Misc. 578; 
Sulzer Impeachment Trial, p. 341, citing Saxe, on 
Elections.) 


ARTICLE XI 

CONSTITUTIONAL CONVENTION OP 1915 

The Constitutional Convention which met on April 
6, 1915, was decided upon and elected pursuant to the 
constitution. Article 14, and Laws of 1913, Chap. 819. 
An attempt to restrain the election of delegates by 
injunction was unsuccessful. (Schietfelin v, Komfort, 
ante, p. 20.) The existing constitutional and legislative 
law respecting the Convention is as follows. 

The Constitution: The constitution provides that 
the delegates shall convene at the capitol on the first 
Tuesday of April next ensuing after their election, 
and shall continue their session until the business of 
such convention shall have been completed. Every 
delegate shall receive for his services the same com¬ 
pensation and the same mileage as shall then be annu¬ 
ally payable to the members of the assembly. A 
majority of the convention shall constitute a quorum 
for the transaction of business, and no amendment to 
the constitution shall be submitted for approval to 
the electors, unless by the assent of a majority of all 
the delegates elected to the convention, the yeas and 
nays being entered on the journal to be kept. The 
convention shall have the power to appoint such offi- 


28 


The New York Election Laws 


cers> employees and assistants as it may deem neces¬ 
sary, and fix their compensation and to provide for 
the printing* of its documents, journal and proceed¬ 
ings. The convention: shall determine the rules ofi its 
own proceedings, choose its own officers, and be the 
judge of the election,, returns and qualifications of its 
members. In case of a vacancy, by death, resignation 
or other cause, of any district delegate elected to the 
convention, such vacancy shall be filled by a vote of 
the remaining delegates representing the district in 
which such vacancy occurs. If such vacancy occurs 
in the office of a delegate-at-large, such vacancy shall 
be filled by a vote of the remaining delegates-at-large. 
Any proposed constitution or constitutional amend¬ 
ment which shall have been adopted by such conven¬ 
tion, shall be submitted to a vote of the electors of the 
state at the time and in the manner provided by such 
convention, at an election which shall be held not less 
than six weeks after the adjournment of such conven¬ 
tion. Upon the approval of such constitution or con¬ 
stitutional amendments, such constitution or consti¬ 
tutional amendment shall go into effect on the first 
day of January next after such approval. 

Laws of 1913, Chap. 819: The statute pursuant to 
which the convention was decided upon and tile dele¬ 
gates were elected provides that it shall be the duty of 
the secretary of state to call the convention to order, 
and preside at all meetings thereof until a temporary 
chairman, president or other presiding officer, either 
temporary or permanent, shall have been elected by 
such convention and shall have taken his seat, but the 
secretary of state shall have no vote therein unless 
he be a duly elected delegate to such convention. 
All public officers, boards and commissions shall 
promptly furnish such convention or any committee 


The Constitution 


29 


thereof with^all such information, papers, statements, 
books or other public documents in their possession 
as ‘the iconvention lor isuch committee shall order or 
require for use at any time during the session of the 
convention. It shall be the duty of the secretary of 
state, the attorney-general, and tlie comptroller who 
shall be in office on January 10, 1915, to cause to be 
prepared and ready for such convention a suitable 
manual, two copies of which shall be furnished to each 
member and officer of the convention, and the expense 
of wliich sliall be paid by the treasurer upon the war¬ 
rant of the comptroller. 

Every delegate to the convention shall be privileged 
from arrest on civil process during his attendance at 
the session of the convention, except on process issued 
in any suit brought against him for any forfeiture, 
misdemeanor or breach of trust in an office or place 
of public trust held by him. Each delegate shall enjoy 
the like privilege for the space of fourteen days ;before 
and after any such session, and during adjournments 
thereof, or when absent with leave of the convention. 
No officer of the convention, while in actual attendance 
upon the same, shall be liable to arrest on civil process. 
Ear.any speech or debate in the convention, the dele¬ 
gates shall not be questioned in.any other ;place. The 
convention shall have the power to expel any of its 
members and to punish its members and officers for 
disorderly behavior, by imprisonment or otherwise, 
but no member shall be expelled until the report of a 
committee appointed to inquire into the facts alleged 
as the ground for such expulsion shall have been re¬ 
ceived by the convention. The convention shall have 
the power to punish as a contempt and by imprison¬ 
ment or otherwise, a breach of its privilege or of the 
privileges of its members, but such powers shall not 


30 


The New Yokk Election Laws 


be exercised except against persons guilty of one or 
more of the following offenses: 

1. The offense of arresting a member or officer of 
the convention in violation of his privilege from arrest 
as hereinbefore declared. 

2. The offense of disorderly conduct in the imme¬ 
diate view and presence of the convention and directly 
tending to interrupt and disturb its proceedings. 

3. The offense of publishing any false and malicious 
report of the proceedings of the convention or of the 
conduct of an officer or delegate in his official capacity. 

4. That of refusing to attend or be examined as a 
witness or to produce papers and documents called 
for by subpoena either before the convention or a 
committee thereof, or before any person authorized by 
the convention or by a committee thereof to take testi¬ 
mony in the proceedings of the convention. 

5. That of giving or offering a bribe to any member 
or of attempting by menace or other corrupt means, 
or inducement or device, directly or indirectly, to con¬ 
trol or influence a member in his vote or other official 
conduct in or in relation to the convention. 

In any case in which the convention shall punish any 
person by imprisonment, such imprisonment shall not 
extend beyond the session of the convention. 


^art ^cconb 

THE ELECTION LAW 


ARTICLE I 

THE NEW YORK SYSTEM OF ELECTIONS 
Title 1.— Election Laws 

Elections: The Election Law consists of a statute 
containing five hundred and sixty-two sections. It 
deals with elections, first, general elections, at which 
all the voters elect public officers from various candi¬ 
dates for election previously nominated by parties 
and independent bodies, and, second, primary elec¬ 
tions, at which party voters nominate party candi¬ 
dates from various candidates for nomination pre¬ 
viously designated by party committees and party 
petitioners. Independent bodies nominate independ¬ 
ent candidates by petition, not by primary election. 
Any system of elections also involves many other 
matters which the experience of time has ingrafted 
upon the exercise of the franchise, and, in New 
York State, the bewildering multitude of detail is 
responsible for the general ignorance of the funda¬ 
mental principles of election law. There cannot, how¬ 
ever, be an election without an election law. Some 
authority is necessary. few voters putting tickets 
in a box do not alone make an election.’’ (People 
ex rel. Woods v. Crissey, 91 N. Y. 616, .634; People 
ex rel. Deitz v. Hogan, 214 N. Y. 216.) 

Election Law of 1842: In 1842, the legislature en¬ 
acted a general election law, entitled ‘^An act respect- 
[ 31 ] 


32 The New York Election Laws 

ing elections’other than for militia and town officers.’’ 
This law remained in force with some amendments 
and supplemental acts from 1842 to 1890. (Laws of 
1842, Chap. 130.) 

BaUot Reform Act of 1890: In 1890, the legislature 
enacted the so-called “ Ballot Reform Act ” (Laws of 
1890, Chap. 262), which bore the significant title ^^An 
act to promote the independence of voters at public 
elections, enforce the secrecy of the ballot and pro¬ 
vide for the printing and distribution of ballots at 
public expense.” That act inaugurated the voting 
booth, prohibited electioneering within one hundred 
and fifty feet of the polling place, took the burden of 
printing and distributing ballots from the party or¬ 
ganizations and placed it upon the public generally, 
and throughout ‘ ‘ teemed ’ ’ with provisions guarding 
against the frauds upon the ballot that experience had 
shown to be possible. (People ex reL Cotfey v. Demo¬ 
cratic'Committee, 164 N. Y. 335, 338-9.) Its primary 
object was to enable the voter to cast his ballot with¬ 
out the possibility of revealing, by the act of voting, 
the identity or political complexion of the candidates 
for whom he voted (People ex reL Nichols v. Board 
of Canvassers, 129 N. Y. 395), and it undoubtedly 
marked a long stride forward in the direction of elec¬ 
tion reform. 

Acts of 1895 and 1896: Since the enactment of the 
Ballot Reform Act, the election law has been amended, 
in. many respects, so as to guard against frauds at 
elections. In 1895, separate party ballots were re¬ 
placed by a single official ballot (Laws of 1895, Chap. 
810); but the ballot so created, while improving con¬ 
ditions oyer no official ballot at all, was the cumber¬ 
some blanket party-column ballot which was used con¬ 
tinuously until the adoption of the Massachusetts form 


The Election Law 


33 


of ballot by the Massachusetts Ballot Act of December, 
1913. In 1896, the election law was rewritten by 

an act in relation to the elections, constituting 
chapter six of the general laws.^^ (Laws of 1896, 
Chap. 909.) 

Party Organization Under Ballot Reform Act: The 

Ballot Reform Act of 1890 and the Election Law of 
1896 did not concern themselves particularly with 
party organization and, for a number of years after 
their enactment, party committees, such as a county 
general committee, continued to be voluntary political 
associations. Membership on such a committee was 
a privilege which might be accorded or withheld by 
the majority members of the committee, who could 
refuse to recognize the choice of a given constituency 
until such time as the voters in that constituency 
should conclude to elect a delegate who would be 
agreeable to the wishes of the majority. (McKane v. 
Adams, 123 N. Y. 609.) Thus there arose a demand 
for a primary law sutheiently comprehensive to as¬ 
sure to all party voters equal rights at primary elec¬ 
tions and conventions and on political committees. 

Primary Laws of 1898-9: In 1898 and 1899, the 
legislature attempted to meet this further demand by 
the enactment of new primary laws. (Laws of 1898, 
Chap. 179, as amended by Laws of 1899, Chap. 473.) 
These new laws recognized, for the first time, that 
primary elections are, in many respects, as important 
as general elections and modeled the conduct of pri¬ 
mary elections upon the conduct of general elections. 
They provided for the enrollment of the voter, and 
for voting booths, challengers and watchers and so on. 
The voluntary character of certain committees, such 
as the county committee, was destroyed and member¬ 
ship thereon became a matter of right by virtue of 
2 


34 


The New York Election Laws 


election thereto at a primary election, and the major¬ 
ity members of the committee became powerless to 
remove a duly elected member on any pretext what¬ 
ever. (People ex rel. Coffey v. Democratic Commit¬ 
tee, 164 N. Y. 335; People ex rel. Hahn v. Eepublican 
Committee, 124 App. Div. 427. Compare People ex rel. 
Garvey v. Democratic Committee, 175 N. Y. 415.) In 
other words, the new primary laws created a scheme 
which authorized voters to construct their party or¬ 
ganization from the bottom upwards, instead of per¬ 
mitting bosses to construct it from the top down¬ 
wards. (People ex rel. Coffey v. Democratic Com¬ 
mittee, supra.) And the present law declares the 
articles dealing with enrollment, party organization, 
party nomination and conduct of primary elections to 
be ‘ ‘ controlling ’ ’ on the method of enrolling the 
voters of a party; the organization and conduct of 
party committees; the method of electing members of 
party committees, and delegates and alternates to 
national party conventions; and the nomination by 
parties of candidates for offices, except town, village 
and school district officers. (Sec. 2, as amended by 
Laws of 1913, Chap. 820.) 

The Campaign for Direct Primaries: The system 
inaugurated by the primary laws of 1898-9, while 
another step in advance, provided for an indirect 
system of primary nominations, wherein the voter, 
at primaries, voted merely for delegates to a conven¬ 
tion, which, in turn, made nominations. Thus, there 
arose a demand for ‘Mirectnominations or dL 
rect ” primaries wherein the voter, at primaries^ 
would vote directly for. his choice for the candidates 
of his party instead of for delegates. This campaign 
for direct primaries appears to have been started in 
1906, by William E. Hearst, in his gubernatorial cam- 


The Election Law 


35 


paign against Charles E. Hughes; and shortly after 
Governor Hughes was elected, as Mr. Hearst pointed 
out at an Independence League meeting in 1908, ‘ ‘ the 
bill which used to sit around the Independence League 
headquarters, clothed, as it were, in contumely,” waa 
to be seen arrayed in the frock coat of respectabil¬ 
ity and the patent leathers of prosperity, walking up 
the avenue, arm in arm, with Governor Hughes.” 
(Proceedings of Joint Committee, p. 2222.) 

The Hughes System: In attempting to follow the 
history of direct primaries, or to pass understand- 
ingly upon the merits of direct primaries and the 
progress and reforms which have been effected or 
remain to be effected, it must be borne in mind that 
Governor Hughes advocated a distinct departure from 
the direct primaries of the west. Under the western 
system, all candidates for nomination are named by 
petition. The party machines are petitioners in just 
the same way as anti-machine party members, and 
both file their petitions within precisely the same time 
limits. Under the Hughes system, however, party 

designating committees,” representing the machine, 
are legalized and are expressly required to make their 
designations prior to the anti-machine groups, who 
are thus afforded a valuable period of opportunity 
in which to examine the designations made by the 
machine committees and, if so advised, to prepare an 
intelligent contest. This is in sharp contrast to west¬ 
ern direct primaries which do not afford any period of 
opportunity whatsoever. 

Legislative Investigation: Governor Hughes did not 
succeed in placing any direct primary legislation upon 
the statute books, but, in April, 1909, the legislature 
appointed a joint committee to investigate the sub¬ 
ject. This committee took testimony in various states 


36 


The New Yoek Election Lawo 

which had had previous experience in the workings of 
direct primary laws, and in February, 1910, made its 
report, wherein it recommended certain amendments 
to the law, but stated its belief that it will be un¬ 
wise, for the present at least, to depart from the his¬ 
toric representative system under which the political 
affairs of the state have been so long administered. 
(Proceedings of Joint Committee, p. 218.) 

Arguments For and Against Direct Primaries: This 
committee's report is most interesting and any 
student who desires to comprehend the arguments for 
and against direct primaries will be well repaid in 
reading it. If so long and comprehensive a report can 
be summarized in a single paragraph, it might be said 
that the advocates of direct primaries claim that 
direct primaries, by reason of the added opportunity 
afforded to all voters alike, are. the only fair method to 
check boss rule and permit the people to choose 
their own candidates for nomination, while the oppo¬ 
nents assert that the principle underlying direct pri¬ 
maries is a pure democracy ” instead of representa¬ 
tive government; that their tendency is to wreck the 
American party system, to eliminate party principles 
and party government and to substitute a government 
by self-seeking office holders; that they necessarily re¬ 
sult in more frequent elections, doubling expenses and 
tending to keep the public mind in a condition of unrest; 
that they are not so well adapted to large communities 
as the convention system; and that they discriminate 
unfairly against the man of worth and ability in 
moderate means because of the expense involved and 
because they invite the demagogue to institute per¬ 
sonal campaigns conducted in a manner with which 
statesmen will not compete. 

Consolidated Election Law of 1909: In 1909, the 
legislature consolidated the election law, the primary 


The Election Law 


37 


election law and other separate laws into a new elec¬ 
tion law. (Laws of 1909, Chap. 22.) The vaiious laws 
hereinafter mentioned {post, pages 37 to 38) are all 
amendments to this consolidated election law; and the 
^‘Election Law (Sec. 1), thus consolidated and 
amended and as prepared under the direction of the 
Secretary of State, is annexed hereto in full. 

Levy Law of 1911: In 1911, the legislature enacted a 
law (Laws of 1911, Ghaj). 649), which contained many 
remedial features and two provisions which the courts 
subsequently held to be unconstitutionaL This was 
known as the ‘ ‘ Levy Law, ’ ^ and because of the criti¬ 
cism directed at one of the two unconstitutional pro¬ 
visions, the value of the remedial features has been 
generally ignored. 

Direct Primary Law of 1911: The legislature of 
1911, during the administration of Governor John A. 
Dix, also wrote the first direct primary law in New 
York upon the statute books. (Laws of 1911, Chap. 
891.) This law abolished the convention system of 
nominating, except for candi-dates for office to be voted 
for by all the voters of the state, and substituted a 
state-wide system of direct primaries operating both 
in rural communities and city districts. Congressmen, 
state senators, assemblymen, supervisors, mayors, jus¬ 
tices of the supreme court and aldermen, all officers, 
in fact, except officers to be voted for by all the voters 
in the state, had to contest for their nominations at 
primary elections held by their respective parties. 
The Hughes system {ante, p. 35) was retained, party 
designating committees being legalized and required 
to make the machine designations five days before 
anti-machine groups were called upon to act. 


38 The New York Election Laws 

Massachusetts Ballot and Direct Primary Laws of 
December, 1913: In December, 1913, the legislature 
enacted a Massachusetts ballot law for general elec¬ 
tions, choosing the Saxe-Dana bill of 1912, which had 
been reintroduced as the Herrick-Carver bill of 1913. 
It also enacted a comprehensive direct primary law 
which abolished the state convention and made state 
officers subject to popular nomination at primaries, 
repealed the Hughes system requiring the machine to 
designate before anti-machine groups (substituting 
the western system) and made a great many other 
changes in the text of the election law. 

Act of 1915: The sole contribution of the legislature 
of 1915 was a party measure (Laws of 1915, 
Chap. 678), reducing the number of superintendents 
of election, increasing the number of deputy superin¬ 
tendents and providing for additional safeguards for 
primary elections in New York city. This act has 
some remedial features; but it is, at best, a familiar 
example of the time-honored discriminatory legisla¬ 
tion annually enacted by Eepublican legislatures, in¬ 
creasing the strictness of elections for New York city 
and encouraging partisan intimidation therein, while 
permitting loose and unprotected elections upstate. 
The act also contains a joker,’’ shearing deputy 
superintendents of election of their powers to perform, 

on their own motion,” the duties for which they are 
appointed. (See post, p. 143.) 

Title 2.— Fundamental Distinctions 

Elections Distinguished : It has already been pointed 
out that all the voters vote at general elections, where 
they elect public officers from various candidates for 


The Election Law 


39 


election previously nominated by party and inde¬ 
pendent nominations, whereas only party voters vote 
at primary elections (democrats at democratic pri¬ 
maries, republicans at republican primaries, and so 
on) and, instead of electing^ merely nominate party 
candidates and instead of making their choice from 
nominees, make it from designees,* that is from can¬ 
didates for nomination previously designated by 
petition. 

Independent Nominations and Designations: Inde¬ 
pendent nominations and designations are usually con¬ 
fused, presumably because both are made by petition; 
but they are absolutely distinct and have nothing 
whatever in common. All designations are exclusively 
party designations. There is no such thing as an inde¬ 
pendent designation. No one except enrolled party 
voters can participate in any designation, and a desig¬ 
nation is merely a preliminary step in the making of a 
party nomination. When each party makes all its 
designations, it holds its primary election and selects, 
by a vote of its party voters, its candidates for nomi¬ 
nation. In other words, a primary election is a first 
or primary election held to choose party candidates 
for a coming general election. Independent nomina¬ 
tions, however, have nothing to do with parties. They 
are made independently of party machinery. When 
each party has completed all its nominations, the law 
provides for nominations by voters by petition inde¬ 
pendently of parties, and it is these nominations which 
are independent nominations. 

Title 3.— Important Election Eeforms of 1913 

Massachusetts Ballot Act: With the enactment of 
the Massachusetts Ballot Act of 1913, providing for 
the use of the Massachusetts form of ballot at general 

* Note. — The word ‘‘ designees ” is novel and does not appear in the 
election law. It is justified, however, as being needed. 



40 


The New York Election Laws 


elections, intelligent election reform achieves its fur¬ 
thermost step. In the first edition of this book, 
this reform was urged in the following language: 
‘‘ The important election is the general annual No¬ 
vember election, and all the machinery of any system 
of elections culminates when each voter casts his single 
vote at that election; so that the most important re¬ 
forms are obviously those which will produce the 
greatest simplicity in voting at general elections and 
atford the greatest opportunity to voters to vote intel¬ 
ligently at general elections. The most important of 
all election reforms, therefore, is the Massachusetts 
ballot, far more important, for instance, than any 
primary reform, which can affect nominations only. 
The Massachusetts ballot, especially with emblems, is 
fairer than the New York ballot both for voter and for 
candidate, more likely to produce intelligent voting and 
elect worthy candidates and much simpler to vote and 
to count. Voters are prone to think little enough in 
any event and a requirement that each voter must 
make one annual voting mark for each and every can¬ 
didate for whom he wishes to vote is not too onerous, 
but, on the contrary, should act as a mild stimulant to 
more intelligent voting. The Massachusetts ballot 
atfords each candidate an opportunity regardless of 
party. Under the present law (i. e., the former law 
repealed by the act of 1913), straight lists of can¬ 
didates are annually elected to office. Although many 
of these candidates would not have a fighting chance 
in a single-handed contest against their opponents on 
the merits, yet they are elected by the column ballot, 
because of a distinguished standard-bearer at the head 
of his ticket, or because of a fusion between two 
minority parties on all except the head of the ticket. 


The Election Law 


41 


or because of the importance of some party principle 
and the indifference and laziness of the voter who is 
required to make but one cross. Fifteen years ago 
the court of appeals criticised the ‘ obscure and cum¬ 
bersome nature ’ of the present law and declared that 
^ the public records show that at every election in this 
state many thousands of votes cast by the electors are 
rejected for some defect in the ballots used and which 
are condemned or supposed to be condemned by the 
statute as void/ and the court thereupon appealed to 
the legislature, saying that ^ the process of voting to 
many uneducated persons and to some who are edu¬ 
cated, is so difficult that votes enough are thrown out 
by the canvassers in some cases to determine the result 
of the election. Whether it is wise to so frame laws 
that govern the casting and counting of votes at an 
election in such a way as to render it very difficult, if 
not impossible, for many of the electors to deposit a 
valid ballot in the ballot box, is a question for the 
legislature. It is quite apparent that, under the pres¬ 
ent system, the result of an election is not always 
determined by the will of the majority, since, unless 
they comply with all the provisions of the statute, their 
votes cannot be counted.^ (People ex rel. Feeny v. 
Board of Canvassers, 156 N. Y. 36, 44—45.) More 
recently, Bartlett and Vann, JJ., declared: ‘ The 
present law has many defects, particularly in regard 
to the form of the ballot and the mode of voting the 
same, and radical amendments are required to secure 
a fair election without disfranchising a large number 
of voters by reason of complicated provisions that are 
not readily understood.^ (Hearst v. Woelper, 183 
N. Y. 274, 291.) ‘‘ The ^ obscure and cumbersome 

nature ^ of the present law (now repealed, as afore- 


42 


The New York Election Laws 


said) also puts a premium on straight voting and, in 
estimating the relative fairness of the Massachusetts 
and New York forms of ballot, there must be charged 
against the latter not only the ^ many thousands of 
votes rejected for some defect in the ballot,^ but also 
many additional thousands of votes cast by voters who 
vote a straight ticket every year, lest, by attempting 
more intelligent choice of men rather than parties, 
they may be wholly disfranchised by some mistake in 
marking the ballot.’’ (Saxe, on Elections, 1st ed., 
pp. 101-103.) 

Significance of Massachusetts BaUot Law: The sig¬ 
nificance of the enactment of the Massachusetts ballot 
lies in the fact that it relegates party primaries to the 
subordinate position where they belong. Demagogues 
may wrestle Avith more Avorthy men at primary elec¬ 
tions and Avin and secure party nominations, but, if 
they succeed, they may be met by intelligent inde¬ 
pendent nominations and a neAV contest at a general 
election, upon a ballot Avhich affords the independent 
candidates fair opportunity to conduct a successful 
campaign. 

Title 4.— Further Election Eeform 

With the enactment of the tAvo laAvs of December, 
1913, therefore, it would seem that election reform 
might Avell pause for a time, so that the present laws 
may have a fair trial. 

Short Ballot: The chief reform, however, AA'hich 
still seems to have a group of persistent advocates, is 
the so-called short ballot.” The term short bal¬ 
lot ” is a misnomer. Its advocates, as such, are not 
concerned Avith the form of the ballot, but they seek 
to reduce the number of elective officers and thus cen¬ 
ter responsibility on the feAver officers Avho are elected. 



The Election Law 


43 


The principle of the “ short ballot,’’ as defined by the 
National Short Ballot Organization, is as follows: 

‘ ‘ First — that only those offices should be elective 
which are important enough to attract (and deserve) 
public examination. Second — that very few offices 
should be filled by election at one time, so as to permit 
adequate and unconfused public examination of the 
candidates, and so as to facilitate the free and intelli¬ 
gent making of original tickets by any voter for him¬ 
self unaided by political specialists. ’ ’ The importance 
of the principle is obvious. Its application, however, 
is always a question of degree. In New York State, 
most state government officials are appointed and only 
a few state officers and the members of the legislature 
are elected. Where should the line be drawn! 

ARTICLE II 
ENROLLMENT OF VOTERS 
Title 1.— lx Genekal 

Parties: The election law defines the term party ” 
to mean any political organization which at the last 
preceding election for governor polled at least ten 
thousand votes for governor (Sec. 3, subdiv. 8, as 
amended by Laws of 1913, Chap. 820) and recognizes 
in the fullest way the existence of parties as political 
organizations with enrolled memberships and officers 
and committees chosen by and from the members. 
Parties are not close corporations selecting their own 
members, but any voter is entitled to become an en¬ 
rolled member of any party and to participate in its 
government, providing he complies with the statutory 
tests, which consist only of his own declaration as to 
his political sympathies and intentions. A voter may 
enroll with one party one year and another party the 
succeeding year (Matter of Duffy, 125 App. Div. 406) 


44 


The New York Election Laws 


provided that, in such succeeding year, he has not par¬ 
ticipated in any primary election or convention (Sec. 7), 

Enrollment Optional: Enrollment, being a party 
function, is not mandatory, but optional with the 
voter. No person can be required to enroll, nor 
does his failure to do so atfect his right to register 
for the purpose of voting at any election, or to vote 
at any election except a primary election (Sec. 21). 
Only enrolled voters are entitled to participate in the 
official primary elections of their respective parties 
(Sec, 19). The intent of the law is to make it a pre¬ 
requisite of voting at a primary that the voter enrolled 
in the same election district as that in which he offers 
his vote; but there is a Special Term decision holding 
that an enrolled voter may require his vote to be re¬ 
ceived in a different election district. (Matter of 
Steinbrink, Benedict, J,, September 28, 1914, appeal 
pending.) No voter can take part in any primary elec¬ 
tion of any party other than the party in which he 
shall at the time be enrolled. No voter who has once 
enrolled in a political party is permitted to enroll in 
another political party before the first day of the next 
registration (Sec. 19), 

Title 2.— Paraphernalia 

The custodian of primary records, that is, the board 
of elections (Sec. 202), whose duty it is to provide 
official ballots for general elections (Sec. 3, subdiv. 7), 
must furnish the paraphernalia of enrollment, which 
include enrollment books (Secs. 4-5), election booths 
and the same articles as are required by law to be 
placed in voting booths for a general election, enroll- 
inent boxes (Sec. 6) and also enrollment blanks, with 
envelopes (Sec. 7). 

In New York city, enrollment and registration are 
now recorded in the same book (Sec. 155, subdiv. 2, 
as amended by Laws of 1915, Chap. 678). The law 


The Election Law 


45 


defines the term ‘‘ enrollment books,when applied to 
those used in New York city, to mean the registers 
(Sec. 3, definition 19, added by Law& of 1915, 
Chap. 678). 

Outside of New York city the enrollment books are 
of the same simple character generally in use until the 
amendment of 1915 (Sec. 5). 

Title 3. — Mannek of Enrolijment 

A voter, who chooses to enroll, enrolls in one year for 
the succeeding calendar year, commencing on the first 
day of January following enrollment. Such enrollment 
remains in force one year (Sec. 18). If he presents 
himself personally for registration on a registration 
day, he enrolls on such registration day, after register¬ 
ing (Sec. 8). Where personal registration is not re¬ 
quired and he has not registered personally, he enrolls 
on election day, after voting (Sec. 9). A voter enrolls 
by entering a booth and making a cross mark in a 
circle under the party emblem of the party of his selec¬ 
tion, upon the enrollment blank provided for that pur¬ 
pose, on which is printed a statement that the voter 
solemnly declares, among other things, that he is in 
general sympathy with the principles of the party 
designated and that it is his intention to support 
generally at the next general election, state or na¬ 
tional, the nominees of such party for state or national 
offices ’’ and that he has not enrolled wdth or partici¬ 
pated in any primary election or convention of any 
other party since the first day of the preceding Jan¬ 
uary (Sec. 7). One mark crossing any other mark at 
any angle within the circle constitutes a cross mark 
(Sec. 10). The law contains a provision that the 
voter use a pencil having black lead (Sec. 10), but this 
is directory only. (Matter of Kirk, 66 Misc. 535.) 
The voter encloses the enrollment blank in the enveL 


46 


The New York Election Laws 


ope, seals the envelope and deposits it in the enroll¬ 
ment box (Sec. 10). The inspectors write the voter’s 
number and residence in the enrollment book (Secs. 
8-9) and indicate that the voter has enrolled by plac¬ 
ing the word ‘‘yes ” after his name (Sec. 10). 

Title 4. — Canvass of Enrollment 
The enrollment books are sealed in envelopes and 
they and the boxes are returned to the custodian of 
primary records, who keeps them unopened until the 
Tuesday after election day (Secs. 12, 13). The 
envelopes are then opened and enrollment is completed 
by the custodian by entering against the various 
voters ’ names in the enrollment books, the name of the 
party with which each has enrolled (Sec. 14). 

Title 5.— Correcting Erroneous Enrollment 
Prior to 1912, a voter who enrolled with the wrong 
party had no redress (Jackson v. Britt, 147 App. Div. 
87; People ex reL Smith v» York, 34 Misc. 120), but 
an amendment enacted in 1912 authorizes a voter who 
has been enrolled with the same party for five years 
and enrolls with another party by inadvertence to 
correct his enrollment by filing a declaration in a 
prescribed form (Sec. 14a, added by Laws of 1912, 
Chap. 52). 

Title 6.— Enrollment for a New Political Party 
In 1913, the legislature, at the instance of the na¬ 
tional progressive party, which became a party at the 
election of 1912, passed a law providing for the enroll¬ 
ment of a new political party (Sec. 15, as amended by 
Laws of 1913, Chap. 587). 

Title 7.— Special Enrollment upon Coming of Age 
A law enacted in 1914 permits any voter who shall 
become of age after the last preceding general election 


The Election Law 


47 


to become specially enrolled witli any party by filing a 
statement embodying an appropriate declaration of 
qualification, sympathy and intention. The necessary- 
forms must be supplied by the boards of election. 
Such enrollment may be accomplished on or before the 
fourth Tuesday pr-eceding an official primary (Sec. 
14B, added by Laws of 1914, Chap. 244.) 


Title 8.— Enrollment Books 

Original Books: The original enrollment books are 
used at official primary elections (Sec. 18). They are 
public records, except for the period during which they 
are sealed (Sec. 21). 

Duplicate Books: The custodian of primary records 
must annually provide for each party and deliver to 
the chairman of its proper general committee a true 
copy of so much of the enrollment books as will give 
the name, address and political affiliation of each voter 
(Sec. 16). These books are used at unofficial pri¬ 
maries (Sec. 17). 


Title 9.— Publication of Enrollment 

The law makes provision for the publication of en¬ 
rollment. This is mandatory in New York city and 
in any county containing a city of the first or second 
class. Elsewhere, it may be done only where author¬ 
ized by the appropriate board of supervisors. (Sec. 
22, as amended by Laws of 1914, Chap. 244.) 


48 


The New York Election Laws 


ARTICLE III 
PARTY ORGANIZATION 
Title 1.— Political Subdivisions of the State 

Subdivisions of the State: The state of New York 
is variously divided into civil and political divisions as 
follows: (1) Counties, containing one or more assem¬ 
bly districts. (2) Congressional districts. (3) Senate 
districts, also containing assembly districts. (4) Cities 
and towns (Revised Statutes, Chap. 2, and acts sup¬ 
plemental thereto and amendatory thereof, not com 
solidated.) 

Election District: Every town and every ward of 
a city not subdivided into election districts consti¬ 
tutes in itself an election district. The town boards of 
towns containing more than four hundred voters, the 
common council of every city, except New York city 
and Buffalo, in which there is a ward containing more 
than four hundred voters, and the boards of elections 
of New York city and Buffalo, have jurisdiction, al¬ 
though a limited jurisdiction, to divide such towns and 
cities into election districts. Each election district 
shall be compact in form and contain as near as may 
be three hundred voters, except in the city of New 
York, where it shall contain three hundred and fifty 
voters. No election district may contain portions of 
two counties or two senate or assembly districts. 
(Sec. 296, as amended by Laws of 1914, Chap. 244.) 
Assembly districts are created by the legislature and 
are permanent in character. Election districts are 
created by local bodies and are transitory in char¬ 
acter, varying according to variation in population. 


The Election Law 


49 


Unit Area of Representation: The election law de* 
fines the term ‘‘ unit of representation ” to mean any 
election district, town, ward of a city, assembly dis¬ 
trict or any other political subdivision of the state 
which is the unit from vrhich members of any political 
committee or delegates to a party convention shall be 
elected (Sec. 3, definition 6). Prior to the amendment 
of 1913, the selection of the unit area of representation 
for delegates to conventions and members of commit¬ 
tees wns left largely to the rules and regulations of 
the various parties. (See Saxe, on Elections (ed, 1), 
pp. 43-5 and cases cited.) Most units are now man¬ 
datory. 


Title 2.— Conventions 

National Conventions: The election law recognizes 
national conventions and prescribes that the rules and 
regulations of each party may prescribe that the dele¬ 
gates and alternates thereto may be elected from con¬ 
gressional districts, or partly from the state at large 
and partly from congressional districts, but such rules 
shall not provide for the election of more than four 
delegates and four alternates at large. Delegates and 
alternates are elected at the spring primaries. (Sec. 
53.) 

All State Conventions Abolished: The Direct Pri¬ 
mary law of 1911 (Law^s of 1911, Chap. 891) abolished 
all conventions in the state, except the state conven¬ 
tion, and the Direct Primary Law of 1913 (Laws 
of 1913, Chap. 820) abolished the state convention, 
striking the article on conventions (Sec. 45, repeal¬ 
ing article 4-b, Secs. 110-114) and even the defini¬ 
tion of a convention, from the text of the law. The 
new law, however, contains a provision that nothing 


50 


The New York Election Laws 


therein contained shall prevent a party from hold¬ 
ing a party convention to be constituted in such 
manner, and to have such powers in relation to for¬ 
mulating party platforms and policies and the trans¬ 
action of business relating to party affairs, as the 
rules and regulations of the party may provide, not 
inconsistent with the election law. Delegates to 
any such convention shall not be chosen at official pri¬ 
maries or otherwise at public expense. (Sec. 45.) 

Effect of Abolition of State Convention: The action 
of the legislature in abolishing the state convention, 
while taken pursuant to a general newspaper demand 
and what was believed to be a dominant public senti¬ 
ment, is likely to meet with serious criticism. Two 
months before such action was taken, an eminent edu¬ 
cator expressed himself as follows: I am of the 

opinion that in New York state, with its vast area, its 
nine or ten million inhabitants, its highly diversified 
industrial and economic conditions, both rural and 
urban, nothing short of a party convention, with un¬ 
restricted opportunity for conference and discussion, 
can adequately reflect the composite sentiments of the 
entire party on the subject of the best and strongest 
candidates for nomination as standard bearers of the 
party in the state.(Jacob G. Schurman, September 
23, 1913). Moreover, inasmuch as any system of di¬ 
rect primaries concededly reaches its highest efficiency 
in smaller localities, where the voter is comparatively 
familiar with the candidates whom he desires his party 
to place, in nomination, and inasmuch as direct pri¬ 
maries lose much of their usefulness in greater local¬ 
ities, where most of the voters have only limited knowl¬ 
edge and meagre information respecting candidates 
for office, it follows that a convention of delegates, 


The Election Law 


51 


who themselves are elected at state-wide direct pri¬ 
maries, is not only consistent with our system of rep¬ 
resentative government, but more efficient to intelli¬ 
gently perform the work of selecting a state ticket. 
It is the logical body to nominate candidates to he voted 
for by all the voters of the state. The abolition of the 
state convention imposes great expense on all stat: 
officers, including judges of the court of appeals. 
Every candidate for party nomination will require an 
organization in every county of the state and, if he is 
not the choice of the machine, an organization able 
to cope with the machine’s organization, wffiich is a 
standing army, prepared to fight whenever called upon. 
As a distinguished citizen of to-day wrote over a 
quarter of a century ago, The politicians would 
not be difficult to beat if the people would organize 
for their protection and from principle; but it is the 
matter of organization which is difficult and no one 
understands this better than the bosses.” (Wm. M. 
Ivins, on Machine Politics, 1887, p. 24.) 

Presidential Primaries: Similarly, so-called pres¬ 
idential primaries,” where the voters instruct dele¬ 
gates to a national convention as to party candidates 
for president, are a sort of extension of the direct pri¬ 
mary principle, still untried in New York, which, 
though advocated in the national platforms of the vari¬ 
ous parties, overlooks the fact that the usefulness of 
direct primaries in small localities is lost in large lo¬ 
calities and that, in a system of representative gov¬ 
ernment, the nominating of state and national officers 
may better be left to the united wisdom of delegates 
after a mutual interchange of ideas at conventions. 


52 


The New York Election Laws 


Title 3.— Committees 

Definition: The term committee means any com¬ 
mittee chosen in accordance with the provisions of the 
election law to represent the members of a party in 
any political subdivision of the state (Sec. 3, defini¬ 
tion 13). 

Party Committees: The election law provides that 
party committees shall consist of a state committee and 
county committees (Sec. 35), the members of which 
are elected at official primary elections (Sec. 38), and 
such other committees as the rules and regulations of 
the party may provide (Secs. 35, '39), the members of 
which must not be chosen at official primaries or other¬ 
wise at public expense (Sec. 45). 

State Committee: The state committee of each part}- 
is constituted by the election from each assembly dis¬ 
trict of one member who must be an enrolled voter of 
the party within such district. Each member of a state 
committee shall be entitled to»one vote (Sec. 36). 

County Committees: The county committees of each 
party are constituted by the election in each election 
district within such county of at least one member, 
and of such additional members as the rules and regu¬ 
lations of the party may provide for such district, pro¬ 
portional to the party vote in the district for governor 
at the last preceding gubernatorial election; or, if no 
additional members ^re required by the rules, the vot¬ 
ing power of each member shall be in proportion to 
such vote. Each member of a county committee must 
be an enrolled voter of the party residing in the as¬ 
sembly district containing the election district in which 
he is elected. Each member of a county committee 
shall be entitled to one-vote (Sec. 37). 

Election of Members of State and County Commit¬ 
tees: Members of the state committee are elected bi- 


The Election Law 


53 


ennially in each even numbered year. Members of 
county committees are elected annually. Elections are 
held at the fall primaries, except in the year of a presi¬ 
dential election, when they are held at the spring pri¬ 
mary. Members of either committee hold office until 
the election of their successors (Sec. 38). 

Organization and Rules of Committees: Every state 
and county committee, within ten days after their elec¬ 
tion, must meet , and organize and, within three days 
thereafter, must file with the secretary of state and the 
board of elections of the county a certificate stating 
the names and postoffice addresses of their officers. 
The election law also provides for the preparation of 
rules and regulations and the amendment thereof 
(Sec. 40). . 

Removal: A member of a party committee may be 
removed by such committee for disloyalty to the party 
or corruption in office, after notice and a hearing upon 
written charges (Sec. 42). 

Vacancies: Where a vacancy occurs in any state or 
county committee, such vacancy is filled by the remain¬ 
ing members of the committee by the selection of an en¬ 
rolled voter of the party qualified for election from the 
unit of representation as to which said vacancy shall 
have occurred (Secs. 36, 37, 43). 


Title 4.— Determinations by Party Authorities 

At one stage in the history of the election law a 
determination of a state convention or state committee 
was regarded by the courts as conclusive and not sub¬ 
ject to review. (Matter of Fairchild, 151 N.-Y. 359.) 
All that now remains are the provisions that, when- 


54 


The New Yokk Election Laws 


ever contending factions each claim the same name 
or emblem or the right to designate election officers, 
preference must be given to the faction recognized by 
the regularly constituted party authorities (Sec. 125); 
and in reviewing questions relating to nominations 
the courts must consider, but need not be controlled 
by, any action or determination of the regularly con¬ 
stituted party authorities. (Sec. 56; Matter of Hea- 
cock, 18 Misc. 311.) 


ARTICLE IV 

NOMINATIONS, IN GENERAL 
Title 1.— Definitions 

Nominations: The election law defines the term 
“ nomination to mean the selection of a candidate 
for office authorized to be filled at a general election, 
or a special election held toT fill a vacancy in such office 
(Sec. 3, definition 9). Nominations are of two classes, 
party nominations (Sec. 45), defined as the selection 
of a candidate by a party (Sec. 3, definition 15), and in¬ 
dependent nominations (Sec. 122), defined as the se¬ 
lection of a candidate by an independent body (Sec. 
3, definition 16). 

Candidates or Nominees: Candidates or nominees 
are of the same two classes, party candidates or nom¬ 
inees (Sec. 3, definition 17) and independent candi¬ 
dates or nominees (Sec.‘3, definition 18). 

Title 2.— Methods of Nomination 

Party Nominations, General Officers: Party nomi¬ 
nations for all offices to be filled at a general election, 
except town, village and school district offices and 


The Election Law 


55 


electors of the president and vice-president of the 
United States^ are made at the fall primary next pre¬ 
ceding such election by the enrolled voters of the party 
(Sec. 45, as amended by Laws of 1913, Chap. 820). 

Party Nominations, Presidential Electors: Candi¬ 
dates for the office of presidential electors are nomi¬ 
nated by the respective state committees, one for each 
congressional district, and two at large (Sec. 54). 

Party Nominations, Minor Local Officers: Nomina¬ 
tions of party candidates for town, village and school 
district offices shall be made in the manner prescribed 
by the rules and regulations of the county committee 
of the county wherein such town, village or school dis¬ 
trict is located (Sec. 45, as amended by Laws of 1913, 
Chap. 820). 

Special City Elections: Nominations of party candi- 
didates for city offices to be filled at a different time 
from the general election are made at unofficial pri¬ 
maries (Sec. 45). 

Party Nominations for Special Elections: Party 
nomination to an office to be voted for at a special 
election shall be made in the manner prescribed by the 
rules and regulations of the respective parties (Sec. 
91, as amended by Laws of 1913, Chap. 820). 

Independent Nominations : All independent nomina¬ 
tions are made by independent certificates of nomina¬ 
tion (Sec. 123). 

Title 3.— Selection of Emblems 

Emblems: The election law provides for emblems, 
both for parties and for independent bodies for the 
official ballot at general elections. The emblem is 
required that the illiterate voter may be secure in his 
choice.’’ (Matter of Greene, 9 App. Div. 223, affirmed 


56 


The New Yokk Electiok Laws 


150 N. Y. 566.) It has even been said that they are 
necessary at primaries the same as at general elec¬ 
tions, so as to enable the voter to avoid mistakes and 
vote intelligently’^ (Hopper v. Britt, 204 N. Y. 524, 
528), but the primary law substitutes numerals for 
emblems, which seiwe the same purpose (Sec. 58, as 
amended by Laws of 1913, Chap. 820). 

The state committee selects the party emblem to 
designate the candidates of the party and files a cer¬ 
tificate showing a representation thereof with the 
secretary of state. Such emblem, when so filed, shall 
in no case be used by any other party or independent 
body. In the case where an independent body nomi¬ 
nates, the signatories select their emblem, which must 
be shown by a representation thereof upon the cer¬ 
tificate of nomination. An emblem, when filed, shall 
be used to designate and distinguish all the candidates 
of the same party or independent body in all districts 
of the state and shall continue to be used to designate 
and distinguish the candidates of such political party 
or independent body in all districts of the state until 
changed by the state conmiittee of the party or by the 
independent body choosing it. An emblem may be 
any appropriate symbol, except the coat of arms or 
seal of any state or of the United States, the state or 
national flag, a religious emblem or symbol, the por¬ 
trait of any person, the representation of a coin or 
of the currency of the United States. Existing devices 
or emblems heretofore chosen pursuant to law shall 
continue until changed in the manner thus indicated 
(Sec. 124, as amended by Laws of 1913, Chap. 820). 

Time: The law does not authorize designation of 
an emblem by a certificate in advance of the certificate 
of nomination (Carmody, A.-Gr., A.-G. opinions of 1913, 
September 16, 1913). 


The Election Law 


57 


Supplying Omitted Emblems: Where the party or 
independent body fails to select an emblem or, having 
selected an emblem, is adjudged not to be entitled 
thereto and thereupon presents no other device, the 
duty of selecting devolves on the officer with whom the 
certificate is filed (Secs. 125-126, as amended by Laws 
of 1914, Chap. 820). 

Title 4. — Conflict in Names or Emblems at General 
Elections 

Conflicts Between Parties: If the certificates of nomi¬ 
nation of two or more different parties or independent 
bodies select substantially the same name or emblem, 
the courts are authorized to decide which is entitled 
to the use thereof, being governed, as far as may be, 
by priority of use in case of a name, and by priority 
of selection in case of an emblem. 

Conflicts Between Factions: If two or more factions 
of the same party claim substantially the same name 
or emblem, the courts must decide between such con¬ 
flicting claims, giving preference of name and device 
to the factions recognized by the regularly constituted 
party authorities (Sec. 125; People ex rel. Ward v. 
Poosevelt, 151 N. Y. 369). 

Contests Where Bona Fide Opponents Seek to Ap¬ 
propriate Name: During the presidential election of 
1896, when the gold democrats at their national con¬ 
vention had adopted the name National Democratic 
Party and nominated presidential electors through¬ 
out the country, the New York courts sustained the 
New York certificate of nomination adopting that 
name (Matter of Greene, 9 App. Div. 223, affirmed 
without opinion, 150 N. Y. 566); but they have since 
refused to permit independent bodies to take the 


58 


The New York Election Laws 


name of ‘‘Social Democratic Party (Matter of 
Social Democratic Party, 182 N. Y. 442), or “ Inde¬ 
pendent Democratic Party (Matter of Carr, 94 App. 
Div. 493), or “ Independent Republican Party ’’ (Mat¬ 
ter of Smith, 41 Misc. 501), or “ Independent Pro¬ 
gressive Party (Matter of Kaufman, 152 App. Div. 
940). 

Contests Where Mala Fide Adherents Seek to Ap¬ 
propriate Name or Emblem: There are also other de¬ 
cisions arising out of the attempt of individuals in 
some particular locality to appropriate for their local 
candidates the name and emblem of some independent 
body, such as the Independence League, Civic Alliance, 
National Progressive or Square Deal Party, which, at 
the time, is showing signs of becoming an important 
factor in an approaching general election. In these 
cases, the claimants to the name and emblem base 
their claim not in derogation of the right of the central 
body, but by virtue of it. They assert that they are 
part and parcel of it. The election law lays down two 
tests affecting these claims, identity and priority, that 
is, identity of a claimant or conflicting claimants with 
the central independent body, and priority between 
conflicting claimants in the time of filing their nomi¬ 
nating certificates. Ordinarily, between conflicting 
claimants, the certificate first filed under the name and 
emblem would be entitled to preference; but this is 
subject to the proviso that it must be filed by the same 
independent body as the central body, which is usually 
a question of fact. (Matter of Independent Nomina¬ 
tions, 186 N. Y. 266.) In determining this question of 
fact, the courts have held that, when there is a contest 
between two bodies, evidenced by two certificates, it 
is a question of relative good faith between the can¬ 
didates nominated to fill up the ticket, that is which 


The Election Law 


59 


ones are in sympathy with the general movement; and 
that the preferences of the committee in charge of the 
general ticket should have great weight in determining 
who shall be placed on its ticket. To hold that a cer¬ 
tificate first filed, especially a certificate nominating 
persons who are already candidates of another party 
which is in opposition to the general ticket on which 
they desire to be placed, must he adopted merely be¬ 
cause it was first filed, would violate the spirit of the 
election law. (Matter of Quimby, 116 App. Div. 142, 
affirmed on the ground that the question of fact had 
been decided by the lower courts; Matter of Inde¬ 
pendent Nominations, 186 N. Y. 266; Matter of Folks, 
134 App. Div. 376, affirmed 196 N. Y. 540; Matter of 
Commissioner of Elections, 64 Misc. 620.) When 
there is no contest between different certificates, how¬ 
ever, and the court is not called upon to pass upon 
conflicting claims of candidates nominated by two sets 
of nominators, the courts have held that they are 
powerless to interfere, unless some reason is made to 
appear why the name and emblem should not be used, 
or that some other body or party has a prior right to 
the use thereof. (Matter of Wechsler, 134 App. Div. 
378.) In a very recent case, where there was but a 
single certificate of nomination, the court of appeals 
held that the fact that the signers of a certificate of 
nomination selected the same name and emblem as 
that of an independent body created a presumption 
that they must be members of that body and that evi¬ 
dence that all the regularly constituted authorities of 
the independent body had decided that no such nomi¬ 
nation should be made in that district did not rebut it. 
(Matter of O’Brien, 206 N. Y. 694, affirming 152 App. 
Div. 856.) This decision was decided by a bare ma¬ 
jority in both courts. In the court of appeals, Cullen, 


60 


The New York Election Laws 


C. J., wrote a strong dissenting opinion in which Vann 
and Werner, JJ., concurred, expressing a number of 
cogent arguments against the existence of any such 
presumption. 

Title 5.— Objections 

The law provides for objections to certificates of 
nomination. They must ordinarily be filed within 
three days after the filing of the certificate. Where 
objections are filed, notice must be given forthwith by 
mail to the committee, if any, appointed on the face 
of such certificate to fill vacancies, and also to each 
candidate placed in nomination by such certificate, an(J 
the question raised by the objection shall be heard and 
determined in the manner prescribed for deciding 
questions arising as to names or emblems (Sec. 134; 
post, p. 166). Objections are public records (Sec. 127). 
If no objections are filed within the statutory time, 
the candidates named in the certificate must be recog¬ 
nized. (Matter of Cowie, 11 Supp. 838, Ingraham, J.) 

Title 6.— Declinations 

Nominations Made at Primaries: In view of the 
fact that the object and purpose and the whole idea 
of nominations by direct primaries is that the people 
at primary elections shall vote directly for the can¬ 
didates for nomination of their choice, it is obvious 
that primary elections would become a nullity in prac¬ 
tice if candidates who successfully contest for nomi¬ 
nation and are thereafter nominated at the primaries 
should be permitted to decline such nomination and 
thereby permit another individual, who has not been 
so nominated by the people, to be selected in some 


The Election Law 


61 


other method in his place, usually by a deal engineered 
by party bosses. This practice was repeatedly in¬ 
dulged in in 1913 and it was destructive of the prin¬ 
ciple and practice of direct primaries. The present 
election law, therefore, prohibits the deblination of a 
nomination made by a primary (Sec. 50), except in the 
case where a person, who was not designated for nomi¬ 
nation, receives the nomination for public office at such 
primaries (Sec. 133). In order to afford each candi¬ 
date the fullest opportunity to decline a designation, 
the law provides that, upon the filing of a designating 
petition, the secretary of state or board with whom it 
is filed must forthwith conspicuously post the same or 
a certified copy thereof and keep it posted until after 
primary day and forthwith mail a notice thereof to 
each person named as a candidate for nomination 
therein (Sec. 49, as amended by Laws of 1914, Chap. 
244); that a person designated may notify the officer 
with whom his designation is filed, in a writing, signed 
and acknowledged by him, that he declines the desig¬ 
nation, filing such declination within six days after 
the third Tuesday preceding the ensuing primary 
(Sec. 50, as amended by Laws of 1914, Chap. 244), 
and that, if the candidate so designated does jiot de¬ 
cline the designation within such time and he is*there- 
after nominated at the official primary election, his 
name shall be printed on the official ballot as the can¬ 
didate of the party or body holding the primary and 
he shall not be permitted to decline such nomination 
(Sec. 50, as amended by Laws of 1914, Chap. 244). 

The only case, therefore, where an individual 
nominated at a primary may decline such nomination, 
is the single case where he was not designated at the 
primary and was nominated by the writing in of his 


62 


The New York Election Laws 


name in the blank space on the ballot provided for that 
purpose. In that case, if he wishes to decline the nomi¬ 
nation he must do so not later than the seventh day 
after the date of the primary at which he was nomi¬ 
nated by filing his written declination thereof, signed 
by him and duly acknowledged (Sec. 133, as amended 
by Laws of 1913, Chap. 820). 

Nominations Not Made at Direct Primaries: In case 
a person is nominated for public office otherwise than 
by an official primary election, he may decline the nomi¬ 
nation by filing a notice to that effect signed by him 
and duly acknowledged. Such declination must be filed 
at least twenty days before election, in case it is to be 
filed with the secretary of state, and at least eighteen 
days before election, if it is to be filed with a board of 
elections, and at least ten days before election, if it 
is to be filed with a town or village clerk, except that 
a declination to a town office in towns where town meet¬ 
ings are held at the time of the general election must 
be filed in the office of the board of election within 
eighteen days before election. Where a person de¬ 
clines within the stated time, his name shall not be 
printed on the official ballot (Sec. 133, as amended by 
Laws of 1913, Chap. 820). 


Title 7.— Vacancies in Nominations 

Primary Nominations: The vacancy in a nomina¬ 
tion. made at a primary election may be caused by the 
declination of the nominee in the single case that he 
was not originally designated (ante^ p. 61), or by the 
disqualification or death of the candidate. Any such 
vacancy may be filled by a majority vote of a quorum 
of the state committee, if the vacancy occur in a nom- 


The Election Law 


63 


ination for an office to be filled by all of the voters of 
the state, and otherwise by the members of the county 
committee or committees elected at such primary ii 
the political subdivision in which such vacancy occurs, 
or by such other committee as the rules and regula¬ 
tions of the party may provide. Certificates of such 
nomination shall be filed in the office in which a desig¬ 
nation of a candidate for such office is required to be 
filed (Sec. 90, as amended by Laws of 1913, Chap 820). 

Other Party Nominations: If a nomination made 
othervdse than by an official primary election is duly 
declined, or the attempt to nominate at a primary re¬ 
sults in a tie, or a candidate regularly nominated 
otherwise than by an official primary election dies 
before election day or is found to be disqualified to 
hold the office for which he is nominated, or if any cer¬ 
tificate of nomination is found to be defective but not 
wholly void, the power to fill the vacancy is vested in 
a committee appointed on the face of the certificate 
(Secs. 123, 135). Two out of three members of the 
committee may act (Sec. 136; Kirk v. Gallagher, 146 
App. Div. 685). The committee files a new certificate 
(Sec. 136), but retains the same name and emblem 
(Sec. 135). There are certain time limits, except in 
case of the death of a candidate after printing of the 
official ballots, when the vacancy may still be filled by 
filing the proper certificate of nomination; but in that 
case the custodian of primary records must prepare 
and furnish to the inspectors, and the ballot clerks 
must affix in the proper place and in a proper mannei 
upon each official ballot before delivery to a voter, a 
paster bearing the new candidate's name (Secs. 136- 
137). 


64 


The New York Election Laws 


Party Nominations Occurring too La>te for Nomina¬ 
tion by Primary: A primary nomination of a candi¬ 
date for a vacancy required to be filled at the next gen¬ 
eral election but occurring too late to be made at the 
appropriate primary may be filled by a majority vote 
of a quorum of the state committee, if the vacancy occur 
in a nomination for an office to be filledby all the voters 
of the state, and otherwise by the members of the 
county committee or committees elected in the political 
subdivision in which such vacancy occurs at the official 
primary preceding the general election at which such 
vacancy is to be filled or by such other committee as 
the rules and regulations of the party may provide 
(Sec. 91, as amended by the Laws of 1913, Chap. 820). 

Independent Nominations: Vacancies in independ¬ 
ent nominations are filled by a committee to fill vacan¬ 
cies named in the certificate (Sec. 123). 


Title 8.— Record of Nominations, Objections and 
Declinations 

All filed certificates and corrected certificates of 
nomination, all objections to such certificates and all 
declinations of nomination are public records. It is 
the duty of every officer or board to exhibit, without 
delay, every such paper to any person who shall re¬ 
quest to see the same. 

It is also the duty of such officer or board to keep 
a book, which shall be open to public inspection, cor¬ 
rectly recording the names of candidates, the titles 
of the offices, the names and emblems of the indepen¬ 
dent bodies making the nomination, and in which 
shall also be stated all declinations and objections and 
the time of filing each of the said papers (Sec. 127). 




The Election Law 


65 


Title 9.— Printing the Ballot 

Authority Vested in Boards of Election: The sec¬ 
retary of state, fourteen days before election, certi¬ 
fies to the various boards of elections the candidates 
nominated by certificates filed with, him or to whom 
he has issued certificates (Sec. 129) and the various 
boards provide the official ballots (Sec. 341). The sole 
guide to the boards of elections in preparing the ballot 
must be the certificate of the secretary of state, the 
certificates of nomination filed with it and its records 
showing the nomination of party candidates at pri¬ 
maries. (Sec. 89, subdiv. 4; Matter of Madden, 148 
N. Y. 136; People ex rel. Hirsh v. Wood, 148 N. Y. 142.) 

No Nomination: When the party column ballot 
was in use it was held that, if a party entitled to a 
column on the ballot makes no nomination, the board 
need not print the column at all. (Matter of Myers, 
140 App. Div. 22.) And, under the new law, if a 
party entitled to nominate a candidate for any office 
makes no nomination for such office there is no statu¬ 
tory requirement that the board insert a space and 
the words no nomination.’^ Under the Myers deci¬ 
sion, it would seem, therefore, that it need not print a 
space for such vacancy. 

Presidential Ballots: If two parties name the same 
candidate for elector, his name will appear in the same 
position in each ticket (Sec. 331). This would be 
required even in the absence of a statutory provision. 
(Vass V. Britt, 209 N. Y. 557.) 

Errors: An honest mistake or some slight omission 
in printing the ballots does not invalidate an election. 
(People ex rel, Hirsh v. Wood, supra; People ex rel. 
Williams v. Board of Canvassers, 183 N. Y. 538, 
affirming 105 App. Div. 197, on opinion of Chester, J., 
below; Matter of Merow, 112 App. Div. 562; Matter 
3 


66 


The New York Election Laws 


of Hirsh, 14 Misc. 377; People ex rel. Hayes v, Ed¬ 
wards, 42 Misc. 567; Matter of Holtzman, 87 Misc. 
116.) The use of lighter paper than that prescribed 
does not render the ballots cast void. (People ex rel. 
Abrams v. Voorhis, 45 Misc. 104.) If ballots- are 
printed, however, so that votes thereon are no longer 
secret, such votes are void. (People ex rel. Nichols v. 
Board of Canvassers, 129 N. Y. 395.) 

Title 10.— Failure of Election Officials to Act 
Until the recent decision of People ex rel. Deitz v. 
Hogan (214 N. Y. 216), the law was regarded as set¬ 
tled that, where the constitution or a statute requires 
an election to fill a vacancy to be held on the day of 
a general election and the election officials fail to pro¬ 
vide for such an election, either by neglecting to issue 
the requisite writ of election or to print the name of 
the office on the official ballot, any voter has the con¬ 
stitutional right to signify his choice for election to 
such office by writing on his. ballot both the name of 
the office and his candidate therefor, and his ballot 
must be recognized and counted and the candidate 
receiving the majority of votes so cast be declared 
duly elected. In People ex rel Davies v. Cowles (13 
N. Y. 350) it appeared that the constitution required 
an election to fill a vacancy in the office of justice of 
the supreme court to be held on the day of the next 
general election. The vacancy occurred too late to 
permit the secretary of state to issue a writ of elec¬ 
tion. A large number of voters, however, voted for 
candidates for justice and the court of appeals held 
that the election was valid and that the relator having 
received a majority of the votes had been duly elected. 
The next decision, chronologically, is People ex rel. 
Woods V. Crissey (91 N. Y. 616, 634-635). In that 
case, there was a vacancy existing since the. prior elec¬ 
tion, and an individual persuaded fifty-five of his 
friends to vote for him. The court pointed out the 


The Election Law 


67 


distinguishing feature between that case and the 
Davies case (p. 635), that in the Davies case an 
authority stood behind the election and commanded it, 
and no less an authority than the constitution itself, 
whereas, in the Woods case (p. 634), the only method 
of tilling the vacancy ‘ ‘ was by an order of the Com¬ 
mon Council directing an election to be held to till it 
and determining the time and place,^^ and the common 
council had not acted. In view of this complete absence 
of authority for an election, either in the constitution 
or statutes or by direction of the common council, the 
court declared that there can be no election without 
some valid authority behind it” and held that the 
alleged ‘‘ election ” was obviously a nullity. 

The next two decisions, chronologically, are Mont¬ 
gomery V. Odell (67 Hun, 169, affirmed, 142 N. Y. 665) 
and the leading case of People ex ret. Goring v, Wap- 
pingers Falls (144 N. Y. 616, affirming 83 Hun, 130). 
In the latter case, the officials charged with the duty 
of preparing the ballots omitted to print thereon the 
name of the office of police justice of Wappingers Falls. 
Notwithstanding the omission, forty-four persons 
voted for the relator for that office, their votes being 
all that were cast therefor. The court of appeals 
held that the relator was duly elected. At general 
term, Cullen, J., declared that in all cases where a 
vacancy occurs in any office which it is ordained shall 
be filled at a general election, any voters may vote for 
their candidate to office, even though the election 
officials have taken no action whatever. ‘ ‘ How can 
the State deny the right of any qualified voter to vote 
at the time prescribed? ” In the court of appeals. 
Gray, J., writing for an unanimous court, said: If 

the clerk, or other officer charged with the duty, neg¬ 
lect to print upon the official ballot the name of an 
office, which, under the law, was to be filled at the elec- 


68 


The New York Election Laws 


tion for which the official ballots were prepared, the 
qualified voter will not thereby he deprived of his con¬ 
stitutional right to vote for any person he chooses for 
such an office . . . In contemplation of law, the official 
ballot prepared for the voter is deemed to contain the 
names of all the offices to be filled at the election and 
if, by omission, clerical or otherwise, an office is not 
named upon it, the voter is warranted in writing in 
. . . the name of the office and the person whom he 
desires to vote for as the incumbent therefor.'*^ 

In People ex rel. Deitz v. Hogan, supra, it appeared 
there were two vacancies in the board of aldermen; 
that a provision of the New York city charter, per¬ 
mitting the appointment of aldermen to a vacancy for 
a full unexpired term was unconstitutional; and that 
a number of voters wrote the title to the office and the 
names Deitz and Brady, the relators, on their ballots. 
The court of appeals held that ‘ ^ while it is true that 
there ought to have been an election to fill such vacan¬ 
cies, and that the omission may leave the districts 
without representation in the Board of Aldermen for 
a year, nevertheless it would be upholding a fiction to 
treat the occurrences upon which the relators rely 
as an election for the offices which they claim . . . 
Here there was no more an election for aldermen than 
there was in People ex rel. Woods v. Crissey.’’ 

This decision of the court of appeals apparently dis¬ 
regards the ‘‘ constitutional right of the voters who 
voted for Deitz and Brady. (People ex rel. Goring v. 
Wappingers Falls.) It also overlooks the distinction 
expressly laid down in the Woods case between that 
case and such cases as the Davies, Goring and Deitz 
and Brady cases, that, in those cases ‘‘ an authority 
stood behind the election and commanded it, and no 
less an authority than the constitution itselfP’ 


The Election Law 


69 


ARTICLE V 

PARTY NOMINATIONS BY PRIMARY ELECTIONS 
Title 1.—In General 

It has already been pointed out that, with the enact¬ 
ment of the direct primary law of 1913, state-wide 
direct primaries became an accomplished fact (ante, 
p. 38) and that virtually every party nomination in 
the state must be made by an official primary election, 
each party holding its own primary (for exceptions 
see ante, pp. 54-55). 

The election law defines the term official pri¬ 
mary ’ ’ or ‘ ‘ official primary election ’ ’ to mean a 
primary election held by a party for the purpose 
of nominating party candidates for office or electing 
persons to party positions and conducted by the pub¬ 
lic officers charged by the law with the duty of con¬ 
ducting general elections. ‘‘Unofficial primary^’ or 
‘ ‘ unofficial primary election ’ ^ is defined as any other 
primary or primary election held by a party or inde¬ 
pendent body (Sec. 3, Definition 2, as amended by 
Laws of 1913, Chap. 820). 

Title 2.—^Date and Hours 

Primary Day: The election law defines primary 
day to mean the day upon which an official primary 
election is held as provided in the election law (Sec. 3, 
Definition 3). In each year an official primary elec¬ 
tion must be held on the fifth Tuesday before the gen¬ 
eral election. This is the annual fall primary (Sec. 3, 
Definition 4). In presidential years, an additional 
official primary election must be held on the first Tues¬ 
day in April. This is the spring primary (Sec. 3, 
Definition 5; Sec. 70, subdiv. 5). 

Hours: The primaries shall be held open from 3 
p. M. to 9 p. M. (Sec. 70, subdiv. 3). 


70 


The New York Election Laws 


Title 3.— Qualification of Voters 

The right of a voter to participate in any official 
primary election is subject to challenge (Sec. 72). 
No person shall be entitled to vote at any official 
primary unless he is duly enrolled with the party 
holding the primary and may be qualified to vote on 
the day of election (Secs. 19, 71, 80). The inspectors 
shall decide all questions relating to the qualification 
of voters (Sec. 71), but, if any enrolled voter is chal¬ 
lenged and makes oath or affirmation that he is the 
person whose name he has given as his name and for 
thirty days has resided and still resides at the address 
which he has given as his residence ‘ ‘ he shall be 
allowed to vote ” (Sec. 72). It has been suggested 
that this provision disqualifies a voter who moves 
within the thirty-day period in the same election dis¬ 
trict. Such, however, was not the intent of the legis¬ 
lature (Secs. 21, 23); and if it were, the provision 
would probably be unconstitutional (ante, pp. 7-8). 

Title 4.— Designations 

Definition: The term ^‘designation’’ is defined 
as any method in accordance with the provisions of 
the election law by which candidates for party nomi¬ 
nations or for election as party committeemen or dele¬ 
gates or alternates to a national party convention 
{i. e. to party position. Sec. 3, Definition 12) may be 
named in order that they be placed on the official bal¬ 
lot for any official primary election (Sec. 3, Definition 
10 ). 

Form and Character: The direct primary law of 
1913 abolished committee designations by certificate. 
All designations of candidates for party nomination or 
for election to party position must be made by petition 
only (Sec. 46, as amended by Laws of 1913, Chap. 820), 


The Election Law 


71 


The form of a designating petition is set forth in the 
election law (Sec. 48). All voters desiring to make a 
designation should adhere strictly to that form. A 
faulty designation cannot he corrected by an order of 
the supreme court allowing an amended petition to be 
filed. (Matter of King, 155 App. Div. 720.) 

Grouping Candidates: A petition for the designa¬ 
tion of candidates for party nomination or for elec¬ 
tion to party position may designate candidates for 
nomination for one or more public offices or for elec¬ 
tion to one or more party positions, or both. 

Signers: All persons signing a designation must be 
Enrolled voters of the party, resident within the po¬ 
litical subdivision or unit of representation for which 
the nomination or election is to be made (Sec. 48; Mat¬ 
ter of Murphy, 126 App. Div. 58; Koenig v. Britt, 149 
App. Div. 68, affirmed 204 N. Y. 681). 

The maximum number of signatures required in any 
case is 3 per cent, of the total number of enrolled vot¬ 
ers of the party residing in such subdivision as deter¬ 
mined by the last preceding enrollment. 

In nearly every case, however, this maximum of 3 
per cent, is further reduced as follows: 

Maximum signatures 


necessary, but, in 

Any oflBce to be filled by all the voters: no case, over 3 %: 

Of the State. 3,000 

Of a city containing more than 1,000,000 inhabitants 1,500 

Of any other city of the first class. 1,000 

Of any city of the second class. 500 

Of any city of the third class. 250 

Of any county or borough containing 250,000 inhab¬ 
itants . 1,000 

Of any county or borough containing from 2,500 to 

250,000 inhabitants. 500 

Of any congressional district. 500 

Of any senatorial district. 500 

Of any other county. 250 

Of any assembly district. 250 (Sec. 48). 

For Justice of the Supreme Court, Judge of the (Sec. 48, 

Court of General Sessions in the City of New as amend- 

York, and Judge of the City Court of the City ed by 

of New York. 1^500 Laws of 


xy iu, 

678). 













72 


The New York Election Laws 


Signing for too Many Candidates: The law pro¬ 
vides that a voter shall not join in designating a 
greater number of candidates than the number of per¬ 
sons to be elected. AYhere an enrolled voter signs a 
petition or petitions designating such greater number 
of candidates his signatures, if they bear the same 
date, shall not be counted, and if they bear different 
dates they shall be counted in the order of their prior¬ 
ity of date and only so far as he was entitled to make 
designations (Sec. 48). 

'Filing: Designations must be filed not earlier than 
two days after the fifth Tuesday and not later than 
the third Tuesday preceding the primaries. They shalf 
be filed with the officer with whom independent cer¬ 
tificates of nomination are required to be filed. 

Death of Designee Before Filing: If a designee dies 
before the petition is filed, it would seem that the sig¬ 
natures to the petition become a nullity as to him, that 
there is no vacancy and a new petition should be pre¬ 
pared for some one else, as in the case of independent 
nominations (People ex rel. Wall v. Britt, N. Y. Law 
Journal, October 16, 1913, Pendleton, J.) 

Title 5.— Objections 

The new primary law provides for objections to 
designations. Prior to this amendment the law did 
not contain any provision authorizing the courts to 
go behind a designation, valid on its face, even 
upon proof of false acknowledgments (Matter of 
Salter, 76 Misc. 33). Under the present provision, 
objections must be filed within three days after the 
filing of the petition. Thereupon, notice must be 
given by mail to the committee appointed upon the 
face of the petition and also to each candidate desig- 


The Election Law 


73 


nated by such petition and the questions raised by the 
objection are heard and determined in the manner pre¬ 
scribed in relation to conflict in name or emblems 
(Secs. 55-a, 125). 

Title 6.— Declination 

Notice of Designees: Designations, on filing, become 
public records; they must be stamped with the date of 
tiling; they, or certified copies thereof, must be con¬ 
spicuously posted in the office where they are filed 
and remain so posted until primary day; and they 
must be open to inspection as public records at all 
reasonable hours (Sec. 49). The board or officer with 
whom the petition is filed must mail a notice thereof 
to each person designated for nomination for office 
(as distinguished from election to party position — 
Sec. 49). 

Declination: Any designee may decline his designa¬ 
tion by notifying the officer with whom the designation 
is filed in a writing signed and duly acknowledged by 
him. The declination to be effective must be filed 
within six days after the third Tuesday before pri¬ 
mary day (Sec. 50). A filed declination cannot be 
attacked by the designee on the ground that he de¬ 
livered it to a third person on an express condition, 
and such person filed it in violation of such condition. 
Matter of Kaufman (N. Y. L. J., September 22, 1914, 
Philbin, J.) 

Notice of Declination: The officer with whom a 
declination is filed must thereafter notify the commit¬ 
tee authorized to fill vacancies in designations, and 
if the declination is filed with the secretary of state, 
he must also notify the boards of election for any 
election districts affected by such declination (Sec. 50). 


74 


The New York Election Laws 


Filling Vacancies: The vacancy created by a dec¬ 
lination must be filled not later than the second Tues¬ 
day before primary day (Sec. 50). 

Death Before Petition Filed: In case of the death of 
a designee before the petition is filed there is no va¬ 
cancy ’’ {ante p. 72). 


Title 7.— Officl\l Primary Ballot 

Definition: The election law defines the term of¬ 
ficial primary ballot/’ to mean the ballot prepared, 
printed and supplied for use at an official primary 
election (Sec. 3, definition 11). 

History: There has been no detail, of primary re¬ 
form that has been regarded as more essential than an 
official primary ballot. Thus Governor Charles E. 
Hughes, in urging the legislature of 1908 to enact some 
decent primary legislation, said: “ Provision should 
also be made for additional protection against the 
commission of frauds at primary elections. With re¬ 
spect to this, provision for an official primary ballot 
is of the utmost importance. It is generally agreed 
that this will accomplish much in preventing fraud ” 
(Message of May 11,1908). Just as the legislation en¬ 
acted between 1890 and 1895 marked a step forward in 
election reform and was regarded as a great reform 
because it provided for an official ballot for use at 
general elections, although the ballot so created was 
the iniquitous party column ballot that remained in 
use down to the enactment of the Massachusetts Bal¬ 
lot Act of 1913, so the Dix direct primary law of 
1911 marked a step forward in primary reform in 
that it placed upon the statute books the first provision 
for an official ballot for use at primary elections. The 
ballot so adopted, however, conferred every conceivable 


The Election Law 


75 


preference on the machine, even giving it a preferen¬ 
tial column and the right to use the party emblem as 
against other members of the party itself. The 
Direct Primary Law of December, 1913, provided for 
a new ballot which fulfills the highest ideal suggested 
by election reformers up to date. So far as New York 
state is concerned this ballot is the* newest of the new, 
but the civic organizations which have been advocating 
the adoption of such .a ballot assure the public that the 
ballot is so beautifully simple that even the most inex¬ 
perienced voter will be able to make his choice with¬ 
out difficulty. 

The New Official Primary Ballot: Each party has 
its own official primary ballot. This is necessarily so, 
because each party holds its own primary election. 
The ballots of no two parties can be of the same color. 
The secretary of state designates the color for each 
party. 

To the voter who has in mind the former party 
column ballot, the chief characteristics of which were 
the party column and the use of emblems, the first thing 
which he must realize now in forming an idea of the 
new ballot is that it has no columns and no emblems. 

In view of the fact that the voter will be ordinarily 
called upon to vote for two different classes of can¬ 
didates, to wit,, candidates for nomination for public 
office and candidates for election to party position, the 
face of the ballot is divided into two parts by a vertical 
line. The lefthand space is reserved for candidates for 
nomination; the righthand space for candidates for 
party position. Considering, first, the lefthand space, 
the different offices to be filled appear in the same con¬ 
secutive order in which they appear at u general elec¬ 
tion and the candidates for each office will be grouped 
under the title of the office. The order in which the 


76 


The New York Election Laws 


names of the candidates will appear in each particular 
group will be determined by lot. Considering, now, 
the righthand space, the election law prescribes the 
order of the various party positions and also provides 
for a similar grouping as in the case of nominations, 
except that there is a provision that where two or more 
candidates .are to be elected to la party position, the 
names of -the candidates designated by each petition 
shall be grouped and a single cross mark will vote for 
all. 

The names of candidates for nomination and for 
party position are numbered consecutively, with a 
large numeral at the left of the name of each candidate 
from one upward, beginning with the name of the first 
candidate for nomination whose name is printed first 
upon the ballot and continuing consecutively through 
the names of said candidates for nomination and then 
consecutively through the names of the candidates for 
party position, except that where there are two or 
more candidates for party position grouped together 
such group shall have but one number which shall be 
printed opposite the approximate center of the group. 
The law contains a provision that the name of a can¬ 
didate shall be placed upon a ballot only once unless 
he is a candidate for both public office and party posi¬ 
tion (Sec. 58, as amended by Laws of 1913, Chap. 820). 

The Ballots at General and Primary Elections: By 
comparing the provisions as to the official primary 
ballot and the official ballot at general elections, it will 
be seen that both abolish the party column and adopt 
in place thereof the Massachusetts form which groups 
candidates for a single office in a single block or sec¬ 
tion. The two ballots in minor details differ in two re¬ 
spects. The primary ballot, being the ballot of a single 


The Election Law 


77 


party, bears no emblems, whereas the ballot at general 
elections, being a ballot for use among various par¬ 
ties and independent bodies, provides for emblems. 
Similarly, on the official primary ballot the order 
of candidates is determined by lot. On the official bal¬ 
lot at elections, precedence is given to the respective 
candidates of the party which polled the highest num¬ 
ber of votes for governor at. the last preceding elec¬ 
tion for governor (Sec. 331, subd. 3). 

Union Label: A primary ballot is not void because 
it bears a union label. (Matter of Peters, 60 Misc. 
420.) 

Unofficial Ballots: If, for any cause, the official bal¬ 
lots for any party shall not be provided as required by 
law at any polling place, upon the opening of the polls 
of any primary election thereat, or if the supply of 
official ballots for any party shall be exhausted before 
the polls are closed, unofficial ballots, printed or writ¬ 
ten, made as nearly as practicable in the form of the 
official ballot, may be used (Sec. 81). 

Title 8.— Pkimaky Districts; Officers; Conduct of 
Primary Elections; Canvasses 

Primary Districts: In villages having less than 
5,000 inhabitants and in the city of New York, each 
election district constitutes a primary district. In 
cities and villages of 5,000 or more inhabitants, ex¬ 
cept the city of New York, the various boards of elec¬ 
tion determine the primary districts, and each district 
consists of two election districts, except where there 
is an odd number and, then, the highest numbered 
district constitutes a primary district by itself. Each 
of these primary districts contains two polling places, 
one for the party which at the last gubernatorial elec¬ 
tion cast the highest number of votes for governor 
and the other for all other parties (Sec. 74, as amended 
by Laws of 1915, Chap. 678). 


78 


The New York Election Laws 


Officers: Election officials for each election district 
within a primary district comprise the election offi¬ 
cers for such primary district (Sec. 70, subd. 1). In 
a city, town or village in which each election district 
constitutes a primary district, the election officers for 
that district constitute the primary election officers. In 
a city or village having more than 5,000 inhabitants, 
except the city of New York, there is a board of pri¬ 
mary election officers for each polling place. In each 
district, one group consists of the election inspectors, 
poll clerks and ballot clerks for the election district or 
districts which shall at the time represent the party 
which at the last gubernatorial election shall have cast 
the largest number of votes for governor and the other 
consists of the officers who shall represent the party 
which at such election shall have cast the second larg¬ 
est number of votes for governor. The first mentioned 
officers conduct the primary election of the party rep¬ 
resented by them and the second group of officers the 
primary elections of all other parties (Sec. 74, as 
amended by Laws of 1915, Chap. 678). 

Primary election officers must take and subscribe the 
constitutional oath of office, before entering on the dis¬ 
charge of their duties (Sec. 70, subdiv. 2) and per¬ 
form the same duties that they are required to per¬ 
form at a general election, and such additional duties 
as are prescribed for primaries (Sec. 70, subdiv. 4). 

Poll Clerks: Special provision is made for primary 
poll clerks (Sec. 78). 

Removal: Removals from primary boards are 
made, and vacancies filled, in the manner provided for 
removals on a day of registration (Sec. 77, post, p. 148). 

Notice: The election law provides that a notice of 
official primaries be issued by the appropriate boards 
of election (Sec. 75). 


m 


The Election Law 79 

Paraphernalia: The paraphernalia of primaries are 
substantially the same as at general elections (Sec. 79). 

Manner of Voting: The provisions as to the folding 
and delivery of ballots and the manner of voting are 
substantially the same as those prescribed by the pro¬ 
visions of law relating to general elections (Sec. 80). 
An amendment enacted in 1915 provides that in New 
York city, the voter must sign the poll book before 
voting (Sec. 78-a, added by Laws of 1915, Chap. 678). 
The voter, on retiring to the voting booth, makes a 
cross mark in the voting square at the left of the name 
of each candidate for whom he desires to vote. A 
cross mark is defined as any straight line crossing 
another straight line at any angle within the voting 
space, and no ballot shall be declared void because a 
cross mark therein is irregular in character (Secs. 
82, 86, post, p. 122). The voter must not make any 
mark on the ballot other than a cross mark for the 
purpose of voting. He shall make his mark with a pen¬ 
cil having black lead, and only in the voting space to 
the left of the name of a candidate, except that he may 
write in the appropriate blank space the name of 
any person or persons for whom he desires to vote 
whose name or names are not printed upon the 
ballot. The voter must not deface or tear the bal¬ 
lot in any manner nor make any erasure or inclose 
in the folded ballot any other paper or any article 
(Secs. 82, 86). If the voter marks more names than 
there are pjersons to be nominated for an office or 
elected to a party position or if for any other reason 
it is impossible to determine the voter’s choice his vote 
shall not be counted therefor, but shall be returned 
as a blank vote for such nomination or party position 
(Sec. 86). 

If a voter defaces a ballot, he may obtain one addi¬ 
tional ballot (Sec. 82). 


80 


The New Yokk Election Laws 


Canvass of Votes: As soon as the polls close the in¬ 
spectors shall publicly canvass and ascertain the re¬ 
sult thereof. They must not adjourn or postpone the 
canvass until it is fully completed. They determine 
questions by a majority vote. The room must be 
clearly lighted, the canvass made in the plain view 
of the public and the main entrance to the room must 
remain unclosed. The canvass must be carried out 
in substantially the same manner as the canvass of 
votes at a general election (Sec. 85, post^ p. 107). 

Proclamation and Statement of Result: Immediately 
upon the completion of the canvass, the board must 
make public oral proclamation of the result thereof and 
also a written statement of such result upon the state¬ 
ment of result sheet, which it files with the custodian 
of primary records, and also a duplicate thereof, which 
it files with the clerk of the city, town or village (Sec. 
87). 

Disposition of Ballots: Ballots rejected as void or 
protested as marked for identification must be inclosed 
in a separate sealed package and filed with the orig¬ 
inal statement of the canvass (Sec. 85). Other ballots 
are replaced in the ballot boxes, which, after being se¬ 
curely locked and sealed, are returned to the officer 
from whom they were received, who must keep the 
same safely for not less than thirty days and until all 
suits or proceedings touching the same shall have been 
finally determined. Other official records must be pre¬ 
served at least two years (Sec. 88). 

Persons Within the Guard-Rail: The only persons 
to be admitted vfithin the guard-rail are election offi¬ 
cers, including the superintendent of elections and 
deputies (Sec. 479), watchers, persons admitted by 


The Election Law 


81 


the inspectors to preserve order or enforce the law, 
persons duly admitted for the purpose of voting and, 
at the canvass, candidates (Sec. 83). 

Electioneering: Electioneering within any polling 
place or within one hundred feet therefrom is pro¬ 
hibited, and no political banner, poster or placard shall 
be allowed in or upon a polling place on any primary 
day (Sec. 84). 

Canvass of Statement of Result: Each board of 
elections must canvass the statements of results filed 
with it and must complete its canvass within one hun¬ 
dred and twenty hours from midnight of the day 
upon which the primary election was held. It acts 
ministerially. It has no power to take evidence or 
otherwise act than to canvass the statements. (People 
ex rel. Caliban v. Hunt, 75 App. Div. 33; Matter of 
Thomas E. Rush, 42 Misc. 70, Clarke, J.) 

A candidate in a district wholly within the jurisdic¬ 
tion of a board of elections who has received the 
highest number of votes cast in such district shall re¬ 
ceive the nomination. If he be elected to a party posi¬ 
tion, the board of elections must deliver to him, upon 
request, a certificate of such election. The board of 
elections must certify to the secretary of state a state¬ 
ment of the vote cast in its territory for all candidates 
whose designations are required to be filed in the office 
of the secretary of state (Sec. 89, subdiv. 1, as amended 
by Laws of 1914, Chap. 244). The secretary of state 
shall then proceed to canvass the certified statements 
filed with him. The candidate who has the highest num¬ 
ber of votes, shall receive the nomination or be elected 
to the party position. The secretary of state, there- 


82 


The New York Election Laws 


after, shall 'transmit to each candidate elected to a 
party position a certificate of such election (Sec. 89, 
subdiv. 2). The statement of result filed or prepared 
in the office of a board of election or of the secretary 
of state showing the nomination of a party candidate 
for public office at an official primary election is equiva¬ 
lent to a certificate of his nomination and no other 
nomination shall be required to be filed for any such 
candidate so nominated (Sec. 89, subdiv. 4). 

The law also provides for so-called unofficial pri¬ 
maries (Sec. 92). 


ARTICLE VI 

INDEPENDENT NOMINATIONS 
Title 1.— In General 

Distinctions: At the beginning of the discussion of 
the system of elections.in New York, it was pointed out 
that the distinction between parties and independent 
bodies is one.to .be* constantly kept in mind in consider¬ 
ing the election law* {ante, p. 39). This is particularly 
true at this point. Chronologically, each faction of 
every party has now made its designation. Each 
party has held its primary and the official canvasses 
have resulted, in due course, in the nomination of party 
candidates for all .the parties. In short, the party 
nominating machinery has fully completed its work and 
the duly nominated candidates of the various parties 
are commencing their campaign for election. All nom¬ 
inations, however, have not yet been made, for there 
still remain such additional nominations as may be 
made independently of party machinery. These are 


The Election Law 


83 


the so-oalled “ independent nominations/’ which will 
now be considered. 

Definitions: “ Independent bodies ” make inde¬ 
pendent nominations ” of ‘‘ independent candidates ” 
or ^‘nominees.” The term ^‘independent body” 
means any organization or association of citizens, 
which, by independent certificate, nominates candi¬ 
dates for office and which, if it nominated a candidate 
to be voted for at the preceding general election of a 
governor, did not poll at least ten thousand votes for 
its candidate for such office (Sec. 3, definition 14). 

Construction: In construing the laws relating to in¬ 
dependent nominations, the most liberal construction 
should be placed thereon in favor of the independent 
voter. (Matter of Adams, 21 Misc. 396, Herrick, J.; 
Matter of Bulger, 48 Misc. 584.) Thus, such laws will 
be construed to cover all offices, whether expressly men¬ 
tioned or not. (Matter of Fagan, 21 Misc. 403, Gay- 
nor, J.) 

Privileges: An independent body of voters, who en¬ 
tertain the same political views, is entitled to the same 
emblem for all its nominees. (Matter of Wise, 108 
App. Div. 52; see also ante, p. 58.) 


Title 2.— Method of Nominating 

Independent Certificate: Independent bodies nomi¬ 
nate by certificate'(Sec. 123). 

Name: Each certificate must designate, in not more 
than five words, the name of the independent body 
making the nomination, which must not include the 
name of any organized political party (Sec. 123). 

Place: The place of filing certificates of nomina¬ 
tions depends on the office to be filled. Sometimes 


84 


The New York Election Laws 


they are filed with the secretary of state, more often 
with the appropriate board of elections and, in some 
cases, with the clerk of a city, village or town. All 
filed certificates are public records, and the officer or 
board must also keep a public book recording all cer¬ 
tificates, objections and declinations filed with him or it 
(Sec. 127). 

Death of Candidate Before Filing: If a nominee 
dies before the independent certificate is filed, the sig¬ 
natures to the petition become a nullity as to the office 
for which he is nominated. There is no ‘Wacancy’’ 
and a new certificate must be prepared for someone 
else for such office. In other words, the nomination 
was arrested by death in the making and before com¬ 
pletion. (People ex rel. Wall v, Britt, N. Y. Law 
Journal, October 16, 1913, Pendleton, J.) 

Time: The time of filing independent certificates 
of nomination depends both on the class of nomination 
and on the office to be filled or place of filing, as 
follows: 

If filed with the secretary of state, must be filed 
between twenty-five and forty-two days before 
election; 

If filed with village clerks and with town clerks 
where town meetings are to be held at a time 
other than the time of the general election — be¬ 
tween ten and twenty days before election. 

All others — between twenty and forty-two days 
before election. 

In case of a special election, not less than ten 
days before such election (Sec. 128). 

These requirements as to time are mandatory, but 
the courts may grant relief, in the absence of negli¬ 
gence or fault, from accident or mistake. (Matter of 


The Election Law 


85 


Darling, 189 N. Y. 570, overruling Matter of Cudde- 
back, 3 App. Div. 103. See also People ex rel. Sim¬ 
mons V. Ham, 56 Misc. 112; Matter of Bayne, 69 Misc. 
579; distinguished. Matter of Swartliout, 76 Misc. 24.) 

Last Day a Sunday: Where the last day to file party 
certificates of nominations with the secretary of state 
falls on a Sunday, a strict construction of the statute 
would require such certificates to be filed on the pre¬ 
ceding Saturday, and the attorney-general has so 
ruled. (Carmody, A.-G., A.-G. Eep. of 1911, p. 647.) 
Where, however, the secretary of state has fixed Mon¬ 
day on the election calendar he is required to make, 
certificates must be accepted on ihat day. (Matter of 
Bayne, supra.) 

Hour: A certificate may be delivered to the proper 
officer, Avherever he is, up to midnight of the last day. 
(Matter of Norton, 34 App. Div. 79, appeal dismissed, 
158 N. Y. 130; Carmody, A.-G., 2 Opinions of 1911, 
p. 647.) 

Preliminary Determination: It has been held at 
special term that the officer to whom an independent 
certificate of nomination is offered may determine, in 
the first instance, the sufficiency of the certificate. 
(People ex rel. Wall v. Britt, N. Y. Law Journal, 
October 16, 1913, Pendleton, J.) In the case cited, 
the court was undoubtedly correct in its decision that 
the certificate in question was a nullity, because the 
only candidate nominated thereby had died before the 
petition was to be filed, but the precise decision of the 
court was to deny a motion to compel the board to 
receive the certificate. It is possible that a court 
should not compel a board to receive a void certificate, 
but the board is a ministerial body and public policy 
requires that it accept every certificate offered to it, 
so that any question in respect thereto may be heard 


86 


The New York Election Laws 


ill the supreme court on objections; and if the deci¬ 
sion should be construed fo mean that a board has the 
right to exercise judicial powers and refuse to receive 
certificates because it determines them to be insuffi¬ 
cient, the decision cannot be sustained. In other 
words, in the case cited, it would seem that the better 
practice would have been for the board to have ac¬ 
cepted the certificate and to have had the question of 
its validity reviewed in the supreme court upon 
objections. 

Title 3. — Qualifications of Signatories 

An independent body may nominate a candidate who 
has been nominated by one or more of the parties or 
one who has not been nominated by any party. A 
signer of an independent certificate must be a duly 
qualified elector of the district for which the nomina¬ 
tion is made and must be or become registered, that 
is, he must be a registered voter (Sec. 123), but it 
does not matter whether he registers before or after 
signing the certificate. (People ex rel. Hotchkiss v. 
Smith, 206 N. Y. 231; People ex rel. Steinert v. Britt, 
146 App. Div. 683. Compare Matter of Horan, 108 
App. Div. 269.) 

Limitations as to Signers: Am enrolled member of a 
party may sign an independent certificate. He may 
bolt all or one of his party’s nominees, but he is pro¬ 
hibited from signing a mere indorsing petition ” for 
his own partycandidates (Sec. 123). Prior to the 
enactment of chapter 649 of the Laws of 1911, a grave 
abuse had become widespread at elections of having 
tickets and candidates repeated over and over on the 
ballot, causing a reduplication of identical columns 
with identical tickets. Campaign managers, seeking 


The Election Law 


87 


the advantage of what had the appearance of an in¬ 
dependent indorsement of their candidates, persuaded 
enrolled members of their own party to sign jjretended 
“ independent certificates, nominating ‘‘ indepen¬ 
dently ’ ’ the identical candidates whom their party 
had already placed in nomination, thus securing for 
their ticket or candidates the right to run under an 
indeiDendent name and an independent emblem, in a 
separate additional column of the ballot (Matter of 
Brevillier, 116 App. Div. 144, affirmed 186 N. Y. 266), 
although, as a matter of fact, there was not even a 
scintilla of independence about the nominations. 
They were of party candidates named by party men. 
The additional columns were mushroom columns 
and nothing else. They served no useful purpose 
whatever. The amendment of 1911 effectually cured 
this abuse, by jjroviding that, in case a candidate 
nominated by an independent certificate of nomination 
be, at the time of filing the certificate, or afterwards, 
the candidate of a political party for the same office, 
the name of no person who is an enrolled member of 
such political party shall be counted upon such inde¬ 
pendent certificate of nomination (Sec. 123). This 
provision, in the first place, recognized ‘‘ the sacred 
right of a party man to bolt,’’ thereby rendering in¬ 
effective a dangerous decision to the contrary (Matter 
of Commissioner of Elections, 64 Misc. 620, Andrews, 
J.); and, secondly, it prohibited party men from sign¬ 
ing indorsing petitions for their own party candidates. 
It was exactly what was needed to strike ‘ ‘ mushroom 
columns ” from the ballot. Its effect, according to 
the court of appeals, was ‘ ‘ to prevent a wrongful use 
of independent nominations.” (People ex rel. Hotch¬ 
kiss V. Smith, 206 N. Y. 231.) 


88 


The New York Election Laws 


Title 4.— Number of Signatories 

The courts have repeatedly pointed out that, in view 
of the great difference in population among the various 
counties, a requirement that specified numbers of sig¬ 
natures he obtained for each office regardless of the 
number of voters in the county or other district cannot 
be just to all, and a percentage of the number of voters 
in each county or district would result more satisfac¬ 
torily and justly; and the court of appeals in 1912 
held some of the numbers specified under statutes run¬ 
ning back more than a decade to be prohibitive and 
therefore unconstitutional, and, in effect, specified new 
numbers in the place thereof. (People ex rel. Hotch¬ 
kiss V. Smith, 206 N. Y. 231, as supplemented and 
modified by People ex rel. Woodruff v. Britt, 206 N. Y. 
246; Matter of Cohoes, 78 Misc. 87, Chester, J.) The 
legislature of 1913 complied with this mandate of the 
court of appeals by passing, over Governor Sulzer’s 
veto, a law providing that independent nominations of 
candidates for offices to be voted for by the voters of 
any political subdivision of the state can only be made 
by f.ve per centum of the total number of votes cast for 
governor at the last gubernatorial election in such 
political subdivision. The law retained the provision 
that nominations for offices to be voted for by all the 
voters of the state can only be made by six thousand 
or more voters (including fifty from each county) and 
also provided that not more than three thousand voters 
shall be required to make an independent nomination 
in any political subdivision and not more than one 
thousand five hundred for a borough or county office 
(Sec. 122, as amended by Laws of 1913, Chap. 800). 


The Election Law 


89 


Title 5.— The Certificate and Its Execution 

An independent certificate of nomination may be 
made for the nomination of more than one candidate, 
if the signers are qualified to make a certificate as to 
all the candidates. (Matter of Independent Nomina¬ 
tions, 186 N. Y. 266, 278, reversing Matter of Bennet, 
116 App. Div. 138.) A certificate must contain the 
title of the offices to be* filled and the name and resi¬ 
dence of each candidate nominated. It may designate 
a committee to* fill vacancies. Each signer, after sign¬ 
ing, adds his place of residence and makes oath that he 
has truly •stated his residence and that it is his inten¬ 
tion to support .at the polls the candidacy of the person 
or persons nominated in the certificate (Sec. 12f3). 

Forgery, Fraud and Irregularity: Even though a 
certificate apparently contains forgeries and irregu¬ 
larities, they do not affect it unless it appears, with 
sufficient clearness, that they reduce the legal number 
of nominators below the requisite number. (Mat¬ 
ter of Walker, 134 App. Div. 947.) Reduplications are 
forgeries, but unregistered signatures are not. (Mat¬ 
ters of Baillee aiid Archibald, 78 Misc. 84, 86, Chester, 
J.) If a certificate consists of more than one sheet, 
no separate sheet can be received if five per centum 
of the names thereon are fraudulent or forged (Sec. 
123). This may be avoided by i^lacingall the signatures 
on one sheet or each signature on a sheet by itself. 
The provision is aimed at procuring honesty in the 
preparation and filing of these certificates. Its valid¬ 
ity has been upheld by the courts. (Burke t?. T'erry, 
203 N. Y. 293; Matter of Baillee, supra.) 

For the purpose of ascertaining whether a person 
whose name appears on a certificate did not sign the 
same, his afiMavit or testimony that he did not do so 


90 


The New York Election Laws 


is prima facie evidence of that fact (Sec. 123). The 
courts in New York county have refused to accept a 
signer’s evidence, by affidavit or otherwise, that he did 
not verify his petition. {In re Wendel, not reported, 
October 23, 1913, Newburger, J.). If the name of a 
person who has signed a certificate appears upon 
another certificate nominating the same or a different 
person for the same office, it cannot be counted upon 
either certificate (Sec. 123). 


ARTICLE VII 
REGISTRATION 

Title 1.— Definitions and Distinctions 

The term ^ ‘ registration ’ ’ is not expressly defined 
in the election law, but it means the -method by which 
a voter places his name on an official record or reg¬ 
ister of the persons qualified to vote in the election 
district in which he resides at the next general elec¬ 
tion. Registration has nothing to do with parties 
or independent bodies, nor with enrollment, nomi¬ 
nations or voting on election day. Its function is 
merely to provide, in advance *of elections, an au¬ 
thentic list of qualified voters for each election dis¬ 
trict, thereby tending to prevent illegal voting. The 
ideal registration law would be one which afforded 
the fullest opportunity to qualified voters to get 
their names on the register, coupled with complete 
precaution against fraudulent voting. Registra¬ 
tion is now necessary at all general elections, as is 
indicated by the oft-repeated warning in the public 
press at registration time If you do not register, 


The Election Law 


91 


yon cannot vote.” It is not required for town and vil¬ 
lage elections not .held at the same time as a general 
election (Sec. 161). 

The constitution divides the state into two divisions 
and provides that, in cities and villages having five 
thousand inhabitants or more, voters shall be regis¬ 
tered upon personal application only; but voters not 
residing in such cities and villages shall not be re¬ 
quired to apply in person for registration at the first 
meeting of the officers having charge of the registry 
of voters. ('Constitution, Article 2, Sec. 4.) It thus 
makes a sharp distinction between populous districts 
and rural communities, requiring personal registra¬ 
tion in the former and prohibiting its requirement in 
the latter on the first day of registration. 


Title 2.— Registration in Rural Communities 

The language of the constitutional provisions pro- 
nibiting a requirement of personal registration on the 
first day of registration is so curiously worded that, 
while registration laws for populous districts have 
become more rigid each year, no adequate law to pro¬ 
tect rural communities against fraudulent registra¬ 
tion has ever been enacted. The legislature of 1911 
attempted to enact a law making a more rigid rule for 
rural communities, but this was held unconstitutional; 
and the court of appeals, in declaring that law uncon¬ 
stitutional, laid down the first clear guide to the legis¬ 
lature as to its powers under the constitutional pro¬ 
vision. The court held that the legislature might re¬ 
quire ‘^proper proofs” and, vdthin the limits of 
reason, the nature of the proof is under its control. It 


92 


The New York Election Laws 


might require application by letter, or through an 
agent, or proof by affidavit or the testimony of a third 
person; but it could not authorize or require the in¬ 
spectors to refuse to register an applicant if he should 
not appear personally on the first day. (Fraser v. 
Brown, 203 N. Y. 136.) 

In 1913, the legislature, having this decision in mind, 
again attempted to make a law on the subject and pro¬ 
vided that at the first meeting for registration the 
inspectors must place upon the register the names 
(1) of all persons who voted at the last preceding 
general election, (2) those presenting themselves in 
person, except the names of such electors as are proven 
to the satisfaction of such inspectors to have ceased to 
be electors in such district, and (3) those proven to 
the satisfaction of such inspectors to be then or there¬ 
after eixtitled to vote, by their affidavits and those of 
two qualified electors (Sec. 159). The Court of Ap¬ 
peals, however, held that the 1913 statute was also 
unconstitutional, because of what it considered the 
arbitrary selection of the persons to make the two 
supporting affidavits; and it sustained the statute to 
the extent, and to the extent only, that it requires the 
inspectors at the first meeting to place on the register 
the names of those specified in (1) and (2), supra, and 
also of (3) those proven to the satisfaction of such 
inspectors to be then and thereafter entitled to vote 
at the election for which such registration is made, 
which proof, the court held, may be made ‘ ‘ by affi¬ 
davit or otherwise.’’ (Eupert v. Rees, 212 N. Y. 514.) 

In all election districts other than in cities or vil¬ 
lages having 5,000 inhabitants or more, there are two 
days of registration, the fourth and third Saturdays be¬ 
fore election, from 7 a. m. to 9 p. m. (Sec. 150). Upon 
the second day the inspectors must place upon the 
register the names only of such persons as may then 


The Election Law 


93 


appear in person (Sec. 159, as amended by Laws of 
1913, Chap. 820). 

Whenever any election district in a village having 
5,000 inhabitants or more embraces territory without 
the limits of the village, inspectors must treat such ter¬ 
ritory without the limits of the village the same as 
any other rural community wholly outside of a city or 
a village having 5,000 inhabitants or more (Sec. 158). 

Imperfect Registration: Since the voters of the year 
before are entitled to registration without further act 
on their part, the fact that the inspectors omit a 
voter ^s residence does not preclude him from voting. 
(Matter of Mathews, 143 App. Div. 561.) 

Title 3.— Registration in New ‘York City 

An amendment enacted in 1915 provides that, in New 
York City, there shall be six days of registration, be¬ 
ginning on the Monday four weeks before election and 
continuing on each day of the week. The hours are 
5 :30 p. M. to 10:30 p. m., except on Saturdays, when 
they are 7 a. m. to 10:30 p. m. (Sec. 150, subdiv. 2, as 
amended by Laws of 1915, Chap. 678). 

Title 4. — Registration Generally 

In cities and villages having 5,000 inhabitants or 
more, the names of such persons only as personally 
appear before the inspectors and who are or will be 
at the election for which the registration is made qual¬ 
ified electors shall be registered for a general election 
(Sec. 158). The only exception to this rule is the case 
where an election district in a village having 5,000 
or more inhabitants embraces within its boundaries 
territory without the limits of such village {supray 
p. 93). 

Registration Days: In every city, except New York 
City, and in villages having 5,000 inhabitants or more, 
there are four registration days —the fourth and 


94 


The New York Election Laws 


third Fridays and Saturdays before a general election. 
The hours for registration are from 7 a. m. to 10 p. m. 
(Sec. 150). 

Title 5. — Qualification and Disqualification of 
Voters 

The election law repeats, in substance, the constitu¬ 
tional qualifications (Sec. 162) and disqualifications 
(Sec. 175) of voters, and the constitutional provisions 
against gaining or losing a residence by sojourn in 
the service of the United States, and elsewhere (Sec. 
163). These provisions have already been discussed 
(an^e, p. 7). 

Convicts: The law provides in addition, that con¬ 
viction of a felony is a disqualification, unless the per¬ 
son is pardoned and restored to citizenship (Sec. 175), 
but this provision does not apply where the person has 
been sentenced or committed to a house of refuge or 
other reformatory (Penal Law, Sec. 644), nor where 
sentence has been suspended. (People v. Fabian, 192 
N. Y. 443). The attorney-general has ruled that it 
applies to a conviction in the federal courts. (Car- 
mody, A.-G., A.-G. Rep. of 1912, p. 339.) 

Removal: The law provides that, if a voter, after 
registering, moves within the same election district, he 
may have the register corrected and vote on election 
day (Sec. 165). He does not become disqualified by 
the subsequent demolition of the building which is hfs 
place of residence before election day. (People ex rel. 
Perry v, Hagan, 25 Misc. 125.) If, however, he moves 
out of the election district between registration day 
and election day, he necessarily loses his vote. 

Naturalized Persons: The inspectors may require of 
naturalized citizens the production of their natural¬ 
ization papers, or a certified copy thereof, and to make 
oath of identity, but if a naturalized citizen, for any 
reason, cannot produce such papers, he may furnish 


The Election Law 


95 


other evidence which will satisfy the hoard of his right 
to be registered (Sec. 174); and if the board refuses 
to place his name upon the register, he may compel it 
to do so by mandamus. The inspectors act minis¬ 
terially in these matters, as in all others. (People 
ex rel. Noel v. Smith, 10 Misc. 100.) 

Title 6.— The Register 

The inspectors make a quadruplicate register, each 
inspector making a copy (Sec. 154). Outside of New 
York City the pages of the register are arranged in 
twenty-four columns, to contain each voter’s name, 
residence, age, place of birth, length of residence and 
other information, and the twenty-second column con¬ 
tains the words the foregoing statements are true ” 
and is reserved for the signature of voters who regis¬ 
ter personally (Sec. 155, subd. 1). In New York City 
the register is arranged in twenty-nine columns, the 
twenty-fourth and twenty-fifth columns relating to 
enrollment (Sec. 155, subdiv. 2, added by Laws of 1915, 
Chap. 678). All four registers must be certified by 
all the inspectors (Sec. 176). The register made by 
the chairman is and is known as the public copy of 
registration and must be left in a prominent position 
in the place of registration from the first day of regis¬ 
tration until election day and at all reasonable times 
must be open to public inspection and for making 
copies thereof (Sec. 177). The other three copies are 
variously disposed of (Secs. 177-8). After election, 
the public copy and the two copies used by the in¬ 
spectors go to the board of elections (Sec. 180). 

Title 7.— Conduct of Registration 

Procedure: In considering the conduct of registra¬ 
tion, the voter is concerned only with those cases where 
he is required or voluntarily elects to register in per¬ 
son, because in other cases the inspectors place his 
name on the register if he voted the preceding year 



96 


The New York Election Laws 


or is proven to their satisfaction to be entitled to vote 
at the next election. 

Where the voter registers in person, the process of 
registration consists in his appearing before the board, 
answering a number, of questions relating to his quali¬ 
fications, and signing his name, by his own hand, 
under the words ‘‘The foregoing statements are 
true.’^ That is all there is to it. 

Inability to Sign Register: If a voter' alleges his 
inability to sign, he is further examined from a list of 
questions known as “ identification statements for 
registration day ’ ’ and, after he has answered them, 
the inspector certifies that he read such questions to 
the voter and truly recorded the latter’s answers 
(Sec. 155). 

Illiterate and Disabled Voters: If a voter is required 
to register persronally and declares that he is unable 
to write by reason of illiteracy, or that he will be 
unable to prepare his ballot without assistance by rea¬ 
son of blindness, loss of both hands, inability of both 
hands for ordinary purposes, or that he will be unable 
to enter the voting booth without assistance by rea¬ 
son of diseased or crippled condition, the nature of 
which he must specify, the board must administer an 
oath to him to the effect that he will be unable to pre¬ 
pare his ballot without assistance because of his con¬ 
dition (Sec. 164). 

Challenges: Any person who applies personally for 
registration may be challenged by any qualified voter 
or watcher who is present. If an applicant be so chal¬ 
lenged, or if any inspector has reason to suspect that 
he is not entitled to have his name registered, the 
chairman or any inspector must administer to him an 
oath to make true answer to certain questions and then 
an inspector must read to him a list of questions speci¬ 
fied in the law and contained in a so-called ‘ ‘ challenge 
affidavit” (Sec. 168) and enter the answers on the 
affidavit, and the applicant subscribes his name 


The Election Law 


97 


thereto. If the applicant, by his answer, satisfies a 
majority of the board of his right to be registered, 
they must register his name as an elector; if not, they 
shall point out to him the qualifications which he lacks 
and his name shall not be registered, except upon an 
application to the court. If the applicant refuses to 
make oath or to answer any questions, he thereby be¬ 
comes disqualified (Sec. 169). The inspectors must 
deliver all challenge affidavits to the police or sheriff 
for investigation (Sec. 170) and keep copies for their 
own use on election day (Sec. 171). 

In New York City, the chairman must challenge the 
registration of any person applying for registration 
under a name on the superintendent’s challenge list, 
unless it affirmatively appear, after strict examination 
of the voter and, if necessary others also, that the 
voter has become domiciled ” at a new address in the 
election district (Sec. 486, subdiv. 1, as amended by 
Laws of 1915, Chap. 678). 

Entry Requiring Challenge on Election Day: Any 
voter may make oath to the board that he has reason 
to believe that any person on the register will not be 
qualified to vote and the board must place the words 

to be challenged ” opposite such person’s name and, 
when such person offers his vote at such election, must 
administer to him the general oath as to qualifica¬ 
tions. If he refuses to take such oath he cannot vote 
(Sec. 173). 


ARTICLE VIII 

GENERAL AND SPECIAL ELECTIONS - 
Title 1. — Time and Place 
General Election: The general election is the elec¬ 
tion which must be held annually on the Tuesday next 
succeeding the first Monday in November (U. S. Re¬ 
vised Statutes, Sec. 131; N. Y. Constitution, Article 3, 
Sec. 9, Article 12, Sec. 3; Election Law, Sec. 3, defini¬ 
tion 1, 290). 

4 


98 


The New York Election Laws 


Executive Writ: The election law provides for a 
notice of election to be issued by the secretary of state 
under his hand and official seal (Sec. 293). This is an 
executive writ. 

Special Election: The governor, in his discretion, is 
authorized to proclaim a special election to fill an elec¬ 
tive office in certain cases and under certain restric¬ 
tions (Sec. 292). 

Election Day: Election day is a holiday (General 
Construction Law, Sec. 24). No parade or drill of the 
active militia may be ordered for that day (Military 
Law, Sec. 111). While the polls are open, no person 
may sell, expose for sale, or give away any liquor 
within a quarter of a mile of a polling place (Liquor 
Tax Law, Sec. 30). No toll shall be charged or col¬ 
lected from any person going to or from the polls 
(Transportation Corporations Law, Sec. 130). Serv¬ 
ice of legal process may apparently be made, as it may 
on Christmas Day (Didsbury v. Van Tassel, 56 Hun, 
423), Lincoln’s Birthday (Matter of Bornemann, 6 
App. Div. 524) and Labor Day (Flynn v. Union Surety 
Co., 170 N. Y. 145). 

Hours: The polls of every general election must be 
opened at 6 a. m. and close at 5 p. m. There shall be 
no adjournment or intermission until the polls are 
closed (Sec. 291). Under a former statute it was held 
that, at 5 p. m., the delivery of ballots to voters must 
cease, and no voter to whom a ballot had not been de¬ 
livered before 5 p. m. could be allowed to vote (New¬ 
comb V. Leary, 128 App. Div. 329), even though stand¬ 
ing on a line of waiting voters within the polling place 
or even within the guard-rail. Since that decision, 
however, the law has been amended and, under the 
present statute, all voters ‘ ‘ who are in the polling 
place at or before 5 o’cloch in the afternoon shall he 
allowed to vote ” (Sec. 291, as amended by Laws of 
1913, Chap. 820). This statute has been liberally con¬ 
strued and all qualified voters on line at a polling 


The Election Law 


99 


place, whether inside or outside of such polling place 
at 5 o’clock, are entitled to vote (Opinion of Corpora¬ 
tion Counsel Polk, October 9, 1914). 

Place: The town board of each town and the com¬ 
mon council of each city, except New York and Buffalo, 
and the board of elections of each of the latter cities, 
must designate annually the place in each election dis¬ 
trict at which the meeting for the registration of voters 
and the election shall be held (Sec. 299) and cause lists 
of the places so selected, with their boundaries, to be 
published in newspapers supporting the candidates 
nominated that year by the two parties, respectively, 
polling the highest and next highest number of votes 
in the state at the last preceding election for governor 
(Sec. 301). The selection of newspapers used to be 
based on advocacy of the principles of such parties 
(People ex rel. Quinn v. Voorhis, 187 N. Y. 327), but 
this was changed in 1913 to support of the candidates 
nominated (Laws of 1913, Chap. 587). 

Title 2.— Vacancies in Public Office 

A vacancy occurring before October 15th of any 
year in any office authorized to be filled at a general 
election must be filled at the general election held next 
thereafter, unless otherwise provided by the constitu¬ 
tion or unless previously filled at a special election 
(Sec. 292). The reference to the constitution refers 
to vacancies in the office of governor and lieutenant- 
governor, as to which there is devolution of title (Con¬ 
stitution, Article 4, Secs. 6, 7). It has also been said 
to refer to offices not made elective by the constitution 
which may be filled by appointment for the balance of 
the unexpired term or by election at some other elec¬ 
tion, as may be provided {ante, p. 25; Public Officers 
Law, Sec. 38; People ex rel. Ward v. Scheu, 167 N. Y. 
292). A vacancy in the office of justice of the supreme 
court is not authorized to be filled at an election unless 
the vacancy occurs not less than three months before 
such election (Constitution, Article 6, Sec. 4). 


100 


The New York Election Laws 


Title 3. — Paraphernalia 

Booths, Ballot Boxes, Guard-Rail, etc.: Each polling 
place must contain a sufficient number of voting booths 
of specified dimensions, at least one for every seventy- 
five registered voters. Each booth must be fitted with 
a swinging door, a shelf and supplies and conveniences, 
including pencils having black lead only, and must be 
kept clearly lighted while the polls are open, by arti¬ 
ficial lights, if necessary. Each polling place must 
contain a guard-rail provided with a place for entrance 
and exit (Sec. 317). 

There must be separate ballot boxes as occasion 
shall require to receive (1) ballots for presidential 
electors, (2) ballots for general officers, (3) ballots for 
constitutional amendments and questions submitted, 
(4) ballots for town propositions and updn town appro¬ 
priations, (5) ballots defective in printing or spoiled 
and mutilated, and (6) stubs detached from ballots 
(Sec. 316). 

Blank Forms: There shall also be printed blank 
forms upon which the election officers shall make writ¬ 
ten returns showing the performance of their duties. 
These blanks include three blanks (1) for a return by 
the ballot clerks, (2) tally sheets for tallying the votes 
as canvassed, and (3) blanks for a return by the in¬ 
spectors of the votes as tallied. The forms vary in 
the case of an election to vote for presidential electors, 
general officers and upon questions submitted (Secs. 
334-9). 

American flag: The American flag must be dis¬ 
played in each polling place (Sec. 300a, added by Laws 
of 1913, Chap. 783). 

Tally Sheet: The tally sheet is the original entry of 
the canvass of the votes and is the most important of 


The Election Law 


101 


the records and governs in case of any discrepancy be¬ 
tween it and the original statement or the return kept 
by the inspectors. (Matter of Stewart, 155 N. Y. 545; 
Matter of Hearst, 183 N. Y. 274; Matter of Stiles, 69 
App. Div. 589.) 

Title 4.— Conduct of Elections and Method of 
Voting 

Election Officers: The election officers for each elec- • 
tion district, consisting of four inspectors of election, 
two poll clerks and two ballot clerks {post, p. 146), 
are required to meet at the polling .place at least one- 
half hour before the time set for opening the polls — 
that is, by 5.30 a. m. (Sec. 350). In case there is a 
vacancy, it must be filled {post, p. 148). 

Oaths: Each election officer must take and subscribe 
the constitutional and statutory oath of office within 
five days after notice of his appointment (Sec, 307). 
In addition, he must make oath, before the opening of 
the polls for election, that he ‘ ‘ will not in any manner 
request, or seek to persuade, or induce any voter to 
vote any particular ticket or for any particular candi¬ 
date, and that he will not keep or make any memoran¬ 
dum or entry of anything occurring within the booth, 
and that he will not, directly or indirectly, reveal to 
any person the name of any candidate voted for by any 
voter, or which ticket he has voted, or anything occur¬ 
ring within the voting booth, except he be called upon 
to testify in a judicial proceeding for a violation of the 
election law (Sec. 357). 

Organization of Board: Before otherwise entering 
upon their duties, the inspectors of each district must 
immediately appoint one of their number chairman, or 
if a majority do not agree upon such appointment^ they 


102 The New Yokk Election Laws 

must draw lots for that position (Sec. 314). The in¬ 
spectors also designate, or choose by lot, one of their 
number to receive the ballots from the voters (Sec. 
353), and choose by lot another inspector to compare 
the signatures of voters made in the registration book 
on registration day with their signatures made in the 
poll book to be signed by them on election day. The 
chairman also designates one of the poll clerks to keep 
such poll book and a poll clerk to keep the book contain¬ 
ing identification statements for election day (Sec. 
355). 

Opening the Polls: The election officers must ar¬ 
range the space within the guard-rail and the fur¬ 
niture, including the voting booths, for the orderly 
and legal conduct of the election. The inspectors are 
responsible for having then and there the register of 
voters, the various ballot boxes, ballots and other para¬ 
phernalia of elections; and they must open the sealed 
packages, post tlve instruction cards, deliver the ballots 
to the ballot clerks, and the poll books to the poll clerks, 
cause the distance markers to be placed one hundred 
feet away from the polling place, be sure that the vot¬ 
ing booths are supplied with pencils having black lead 
only, unlock the ballot boxes, see that they are empty 
and relock them (Sec. 350). One of the inspectors 
shall then make proclamation that the polls are open 
and of the time in the afternoon when they will be 
closed (Sec. 350). The following proclamation may be 
used: 

‘ ^ Hear ye! Hear ye! Hear ye! The polls of 
this election are opened, and all persons attend¬ 
ing the same are strictly charged and commanded, 
by the authority and in the name of the people of 
this state, to keep the peace thereof during their 


The Election Law 


103 


attendance at this election on pain of imprison¬ 
ment. And all persons are desired to take notice 
that the polls will be closed at five o^clock in the 
afternoon.” (Instructions for election officers, 
as published under direction of the secretary of 
state.) 

Conditions During Polling Hours: After the boxes 
are relocked, they shall not be unlocked or opened until 
the closing of the polls (Sec. 350). There shall be no 
electioneering within the polling place or within one 
hundred feet therefrom (Sec. 352). No person shall 
be admitted within the guard-rail, except the superin¬ 
tendent of election, deputy superintendents (Sec. 
479), inspectors, poll clerks, ballot clerks, watchers, 
persons achnitted by inspectors to preserve order or 
enforce the law, persons admitted for the purpose of 
voting and, during the canvass, candidates (Sec. 351). 
The proceedings of the board are public. The in¬ 
spectors may neither close the polls nor retire there¬ 
from to deliberate (Secs. 291, 315). Each inspector 
has full authority to preserve peace and good order 
and enforce obedience to his lawful commands 
and may order the arrest of any person violating the 
election law, other than an election officer (Sec. 315). 

Procedure in Voting: In order to vote, the voter 
enters witliin the guard-rail and forthwith proceeds 
to the inspectors and gives his name and residence. 
One of the inspectors, thereux)on, announces his name 
and residence in a loud and distinct tone of voice 
(Sec. 356). The inspectors other than the inspector 
designated to receive ballots ascertain whether he is 
duly registered and, if he is, announce that he is so 
registered (Sec. 353). If he is not registered, he can¬ 
not vote (Sec. 356). Each poll clerk enters the voter’s 


104 


The New York Election Laws 


number, name and residence in his poll book, and the 
voter signs his name in the poll book kept for the pur¬ 
pose below the words, ‘‘ The foregoing statements are 
true.’’ The inspector previously designated for the 
purpose compares the voter’s signature in the poll 
book with his signature in the registration book and 
if the signature is the same or sufficiently similar as to 
identify it as having been written by the same person, 
the inspector certifies that fact by writing his initials 
after such signature. If the voter, on registration 
day, alleged his inability to so sign, then a poll clerk 
reads to him the same list of questions as were re¬ 
quired to be read on registration day from a book of 
^‘identification statements for election day” and 
writes the answers thereto. If the signatures or an¬ 
swers do not correspond, any watcher or challenger 
may and, if they do not, the inspectors must challenge 
the voter (Sec. 355). If the voter is entitled to vote 
and is not challenged, or, if challenged and the chal¬ 
lenge be decided in his favor, an inspector or ballot 
clerk delivers to him one official ballot or set of ballots 
duly folded (Sec. 356). The voter’s receipt of the 
ballot is the commencement of the act of voting. If, 
thereafter, the voter leaves the space within the guard¬ 
rail, before voting, he cannot enter again within the 
guard-rail for the purpose of voting or receive any 
further ballots (Sec. 359). On receiving his ballot, the 
voter forthwith and without leaving the enclosed space 
retires alone, unless he be one entitled to assistance 
{post, p. 106), to one of the voting booths, and, without 
undue delay, unfolds and marks his ballot. If all the 
booths are in use and voters are waiting, he can occupy 
his booth only five minutes (Sec. 358). The voter, 
having marked his ballot, leaves the voting booth with 


The Election Law 


105 


his ballot folded so as to conceal the face of the ballot, 
but to show the indorsement on the back; and, keep¬ 
ing the same so folded, proceeds at once to the 
inspector in charge of the ballot box and offers the 
same to such inspector. This inspector announces 
the voter’s name and the printed number on the 
stub in a loud and distinct tone of voice (Sec. 359). 
The poll clerks report whether the number on the 
poll books and the number of the ballot or bal¬ 
lots delivered to the voter is the same as the num¬ 
ber on the stub (Sec. 355). Then, if such voter be 
entitled then and there to vote and be not challenged, 
or if challenged and the challenge be decided in his 
favor, and if his ballot or ballots are properly folded 
and have no mark or tear visible on the outside thereof, 
and if the printed number on the stub is the same as 
that entered on the poll books as the number on the 
stub, such inspector shall receive such ballot or ballots 
and, after removing the stub or stubs therefrom in 
plain view of the voter and without removing any 
other part of the ballot or in any way exposing any 
part of the face thereof below the stub, deposit each 
ballot in the proper ballot box for the reception of 
voted ballots (Sec. 359) and the stubs in the box for 
detached ballot stubs (Secs. 353, 359). As each voter 
votes, the inspectors check his name upon the register 
and enter therein the number on the stub of the ballot 
or set of ballots voted by him (Sec. 353). Upon voting, 
the voter passes outside the guard-rail, unless he be 
one of the persons authorized to remain within the 
guard-rail for other purposes than voting (Sec. 359). 
Upon the close of the polls, the poll clerks and in¬ 
spectors compare the poll book with the registers and 
correct any mistakes (Sec. 355). 


106 


The New York Election Laws 


Illiterate or Disabled Voters: Any voter who, at 
registration, has made oath to physical disability or 
illiteracy {ante, p. 96) or who, being registered, makes 
oath that he has become so disabled since registration, 
or who, not being required to register in person, makes 
oath to physical disability or illiteracy, may choose 
two election officers of diilerent faith to assist him in 
preparing his ballot. At any town meeting or village 
election, where the election officers are all of the same 
political faith, any voter entitled to assistance may 
select one of such election officers and one voter of 
such town or village of opposite political faith from 
the election officer to render such assistance (Sec. 357). 

Employees; Employers must allow their employees 
two hours in which to vote (Sec. 365). 

Title 5. — Challenges 

Time: The right of any person to vote whose name 
is on the register is subject to challenge (Sec. 356). 
He may be challenged either when he applies to the 
ballot clerk for his ballots or when he offers his ballots 
to the inspector or previously, by notice to that effect 
to an inspector, by any elector (Sec. 361). 

Who May Challenge: Any inspector must challenge 
every person offering to vote whom he knows or sus¬ 
pects not to be duly qualified as an elector and every 
person challenged at registration, provided such chal¬ 
lenge has not meanwhile been withdrawn. Any watcher 
or challenger may also challenge any voter (Sec. 361). 
In New York City, the chairman must challenge the 
vote of any person presenting himself to vote under 
a name on the superintendent’s challenge list (Sec. 486, 
siibdiv. 2, as amended by Laws of 1915, Chap. 678). 

Procedure on Challenge: The ordinary course of pro¬ 
cedure on a challenge is the administering of the so- 
called preliminary oath,” followed by a prescribed 
examination (Sec. 362). Where a person applies to 


The Election Law 


107 


vote on the name of a person challenged at registra¬ 
tion, the preliminary oath is administered and the 
questions on the challenge affidavit asked again. This 
gives an opportunity for comparing the two sets of 
answers and descriptions. If there is any material 
difference or conflict between the answers or in the 
descriptions, the law provides that the applicant’s vote 

shall not he received ’’ (Sec. 361). A voter having 
the qualifications prescribed in the constitution has a 
constitutional franchise of which he cannot be deprived 
by the officers Avho administer the law {ante, p. 10). 
In all cases, therefore, if the applicant persists in his 
claim to vote and the challenge is not withdrawn, the 
so-called ‘ ‘ general oath ’ ’ is administered and, in a 
proper case, particular oaths relating to the cause of 
challenge; and if the voter takes all the oaths tendered 
to him, his vote shall he accepted (Sec. 363; 
People ex rel. Smith v. Pease, 30 Barb. 588), 
even if some one else has already voted on his name. 
(People ex rel. Borgia v. Doe, 109 App. Div. 670.) 
A voter cannot even be deprived of his right to vote 
by arrest. He must be afforded the privilege of voting 
before he is removed from the polling place. (Sec. 315; 
People ex rel. Borgia v. Doe, supra; People v. Hoch- 
stim, 76 App. Div. 25.) Of course, in any case where 
an applicant refuses to comply with the statutory tests, 
either by refusing to take any oath or answer any 
question, he loses his right to vote (Secs. 361-3). 

Title 6.— Original Canvass by Election Officers 

In General: As soon as the polls are closed, the in¬ 
spectors must publicly canvass and ascertain the votes 
and not adjourn or postpone the canvass until it shall 
be fully completed. The room in which such canvass 


108 


The New York Election Laws 


is made shall be clearly lighted and such canvass shall 
be made in plain view of the public. It shall not be 
lawful for any person or persons, during the canvass, 
to close the main entrance to the room in which such 
canvass is conducted in such manner as to prevent 
ingress and egress. 

At the close of the polls, before the ballot boxes are 
opened, the ballot clerks must make up a triplicate 
return accounting for all the official ballots furnished 
to the election district in which they are serving, and 
sign and swear to their returns and deliver the same 
to the chairman of the board of inspectors. At the 
same time, the poll clerks assist the inspectors in com¬ 
paring the poll books with the register and shall make 
out and sign and swear to their triplicate returns and 
deliver the same to the chairman. The ballot boxes 
shall then, and not before, be opened (Sec. 366). 

Order of Canvassing: After these returns have been 
executed and filed, the boxes are opened and the ballots 
canvassed in the following order — first, the box, if 
any, containing the presidential ballots, second, the 
box, if any, containing general ballots and third, the 
box, if any, containing ballots upon constitutional 
amendments or other questions submitted, including 
town questions (Sec. 366). 

Comparing Number of Ballots: The inspectors com¬ 
mence the canvass by comparing the two poll books 
with the register, correcting any mistakes therein and 
by counting the ballots found in the ballot boxes, with¬ 
out unfolding them, and by comparing the number of 
ballots found in each box and the number shown in the 
poll books and on the ballot clerk’s returns to have been 
deposited therein. If the ballots found in any box are 
more than the number of ballots shown to have been 
deposited therein, all of the ballots shall be replaced. 


The Election Law 


109 


without being unfolded, shall be thoroughly mingled, 
and an inspector, designated by the board, shall, with¬ 
out seeing the same and with his back to the box, pub¬ 
licly draw out as many ballots as equal such excess, 
and without unfolding them inclose them in an en¬ 
velope which he shall seal and indorse excess ballots 
from the box for,” designating the name of the par¬ 
ticular box, and shall then place the envelope in the 
box for defective or spoiled ballots. If two or more 
ballots are found in a ballot box folded together, and 
if the whole number in the box exceeds the number 
shown by the returns to have been deposited therein, 
they or enough of them to reduce the ballots to the 
proper number shall similarly be inclosed, sealed and 
indorsed and placed with the spoiled ballots. If there 
lawfully be more than one ballot box for the reception 
of ballots voted at the polling place, no ballots found 
in the wrong ballot boxes shall for any reason be re¬ 
jected, but shall be placed in their proper box by the 
inspectors upon the count of the ballots before the 
canvass and counted in the same manner as if they 
where found in the proper ballot box, provided such 
ballots shall not make the total of ballots more than is 
shown to have been deposited. 

No ballot that has not the official indorsement shall 
be counted, except such as are voted in accordance 
with the provision of law relating to unofficial ballots 
(Sec. 367). 

Method of Canvass: The chairman unfolds each bal¬ 
lot of the kind being canvassed face downward and 
places all the ballots, so unfolded, face down, in one pile. 
He then takes up each ballot in order and announces the 
vote registered on the first section and he then turns it 
face down and places it in a new pile. When the canvass 


110 


The New Yokk Election Laws 


of the first section of all the ballots of a kind have been 
canvassed in this manner and the poll clerks’ tallies 
are proved to be correct, the official return is filled out 
and signed. Then, and not before, the chairman pro¬ 
ceeds to canvass in like manner the votes upon the 
other sections remaining to be canvassed, completing 
the canvass of each ballot as he proceeds. In other 
words, in view of the importance to the public of ascer¬ 
taining the vote for the head of the ticket, the first 
section is always canvassed first and then the ballots 
are gone through only once more, the remaining sec¬ 
tions on each ballot being canvassed together. When 
all sections have been canvassed, the number of the 
ballots is compared with the tally. If in the result as 
shown by the number of the ballots an error has been 
committed a recanvass must be made. Upon the re- 
canvass, the tally must be kept in red ink. When all 
the errors have been corrected and the tally sheets 
have been found to be correct, they are folded and 
closed and the inspectors and poll clerks must sign the 
certificate at the foot of each sheet at the places indi¬ 
cated thereon (Sec. 368, as amended by Laws of 1914, 
Chap. 244). 

Canvassing Presidential Ballots: In view of the fact 
that presidential ballots retain the party column, a 
slightly different method of canvassing is required. 
The straight ballots and the split ballots are placed 
in separate piles, the pile of straight ballots is counted 
and the number of straight votes for each candidate 
entered in gross opposite his name on the tally sheets. 
The numbers of split, void and blank ballots are sim¬ 
ilarly entered. The chairman shall then take up the 
split ballots and canvass them and they shall be tallied 
in the manner already indicated (Sec. 368). 

Objections to Counting: If objection to the counting 


The Election Law 


111 


of any ballot or section be made the board shall forth¬ 
with rule upon the objection. If the objection is con¬ 
tinued after this ruling, the chairman shall write in 
ink upon the back of the ballot a memorandum of the 
ruling and objection, stating how the ballot was 
counted (Sec. 369). 

Disposal of Ballots: When*all the ballots of any one 
kind have been canvassed, the chairman places all the 
ballots of that kind as to the counting of which objec¬ 
tion was taken, all wholly void ballots and all wholly 
blank ballots in a separate sealed package. The other 
ballots shall be tied together, labeled and returned to 
the ballot box from which they were taken before pro¬ 
ceeding to canvass the next kind of ballots to be can¬ 
vassed (Sec. 369). 

Proving the Tallies: . The law contains a provision 
for proving the tallies. Election officers should be care¬ 
ful to comply with this provision (Sec. 370). 

. Inspection: Ballots at all times*must be kept on top 
of the table and in plain view until they have been tied 
into bundles. If requested by any person entitled to 
be present the inspectors must exhibit to him the ballot 
being canvassed, but no inspector should allow any 
ballot to be taken from his hands (Sec. 371). 

Returns of Canvassers: Upon completing the can¬ 
vass the inspectors and poll clerks must make and 
sign in ink their several returns in triplicate. Each 
of the two tally sheets shall be securely attached by 
the chairman to one of the returns relating to the same 
office or question and shall be treated as part thereof. 

Powers of Inspectors: Inspectors cannot determine 
qualifications. The duty of the inspectors to canvass 
the votes after rejecting the l)allots declared void, like 
all their other duties {ante, p. 10), is ministerial and 
they cannot determine any question of a candidate’s 


112 


The New York Election Laws 


eligibility. (Matter of Atkinson, 28 Misc. 694, affirmed 
45 App. Div. 628.) 

Proclamation of Result: Upon the completion of the 
canvass and the making of the original statement and 
copies thereof, the chairman must make a public oral 
proclamation of the whole number of votes cast at the 
polling place for all candidates for each office, upon 
each proposed constitutional amendment or other ques¬ 
tion or proposition, if any, voted upon at such election, 
the whole number of votes given for each person, with 
the title of the office for which he wms named on the 
ballot; and the whole number of votes given respec¬ 
tively for and against each proposed constitutional 
amendment or other question or proposition, if any, 
so submitted (Sec. 375). Such proclamation should 
be made in the form following: 

‘ ^ Hear ye! hear ye! hear ye! The whole 
number of votes given for the office of (gov¬ 
ernor) found in the box just canvassed was 
389, of which number there were given for 
said office, for Levi P. Morton (243), for 
David B. Hill (120), for Francis E. Baldwin 
(26),” (naming each person voted for, for the 
office of governor, and the number of votes 
given for him for that office). 

The whole number of votes given for the 
office of lieutenant-governor, found in the 

same box, was.; of which there were 

given for that office, for Charles T. Saxton 

., for Daniel N. Lockwood.” 

Proceed on with the votes given for the differ¬ 
ent candidates. (Instructions for election 
officers, as published under direction of the 
secretary of state.) 





The Election Law 


113 


Police Statements: In all cities and villages of five 
thousand inhabitants or more, the chairman thereupon 
delivers to the police officer on duty at the place of 
canvass a statement subscribed by the board, stating 
the number of votes received by each candidate for 
office. Such statement shall forthwith be conveyed by 
the said officer to the stationhouse of the police precinct 
in which such place of canvass is located, and he shall 
deliver the same inviolate to the officer in command 
thereof, who shall immediately transmit by telegraph, 
telephone or messenger, the contents of such statement 
to the officer commanding the police department of 
such city or village. Such statement must be pre¬ 
served for six months by the police, and is pre¬ 
sumptive evidence of the result of such canvass for 
each office (Sec. 372). 

Police Statements in New York City; 1915 Amend¬ 
ment: An amendment enacted in 1915 provides that 
in New York City the commanding officer must cause 
all the returns to be tabulated ‘ ‘ immediately, ’ ’ so that 
the final results may be known ^ ‘ as early as possible ’ ’ 
(Sec. 372, as amended by Lkws of 1915, Chap. 678). It 
may fairly be asked if the Republican legislature, in 
devising this amendment, was solicitous of assisting 
New York City voters to satisfy their curiosity on 
election night, or whether it deemed that up-state cap¬ 
tains could use the police returns for New York City 
as a basis for calculating the votes needed up-state to 
offset the vote in New York City. 

Sealing Statements: The statements of canvass must 
be securely sealed in separate envelopes and kept invio¬ 
late by the officers or board with whom they are filed, 
until delivered, together with the sealed packages of 
void and protested ballots, to the appropriate board of 
canvassers (Sec. 376). 

Disposition of Statements, etc.: In New York City, 
the chairman of the board files the original statement of 


114 The New York Election Laws 

canvass, the sealed package of void and protested bal¬ 
lots and a poll book and tally sheet with the county clerk; 
and an inspector, designated by the chairman, tiles a cer¬ 
tified copy of the statement and the other poll book 
and tally sheet with the board of elections (Sec. 378). 
Elsewhere, the chairman files the poll book, containing 
the signatures of voters, wfith the superintendent of 
elections, the original statement and package of void 
and protested ballots and a tally sheet with the board 
of elections, a certified copy of the statement, the other 
poll book and the other tally sheet with the town or 
city clerk, and delivers the other certified copy of the 
statement to the ppervisor, or, if there is none, or he 
is absent, to an assessor (Sec. 377). The procedure is 
somew^hat different in Erie County (Sec. 380). 

Void and Protested Ballots: Each ballot declared 
void shall be indorsed upon the back wfith the specific 
reason for such rejection. The void and protested 
ballots are secured in a separate sealed package and 
filed by the chairman with the original statement of 
the canvass (Sec. 376). They may be destroyed at the 
end of six months from the time of completing the'can¬ 
vass, unless otherwise ordered by a court of competent 
jurisdiction (Sec. 437). 

Preservation of Ballots in Boxes: The ballots voted, 
except the void and protested ballots, must be replaced 
in the box from which they were taken, together with 
a statement as to the number of such ballots so re¬ 
placed. Each such box shall be securely locked and 
sealed, and shall be deposited wdth the officer or board 
furnishing such boxes. They shall be preserved in¬ 
violate for six months after such election, and may be 
opened and their contents examined upon the order 
of any court of competent jurisdiction and at the 
expiration of such time the ballots must be destroyed 
(Sec. 374, as amended by Laws of 1913, Chap. 821). 




The Election Law 


115 


Title 7.— Iekegularities at Elections 

De Facto Officers: An election is not invalidated 
although held by officers who were such de facto 
merely. (People v. Cook, 8 N. Y. 67.) 

Irregular Ballots: It is not invalidated by honest 
mistakes. or slight omissions in printing the ballot 
{ante, p. 65). 

Carelessness of Election Officers: It is not invali¬ 
dated by reason of the carelessness of the election 
officers. (People ex ret. Williams v. Board of Can¬ 
vassers, 183 N. Y. 538, affirming 105 App. Div. 197, 
on opinion of Chester, J., below; Matter of Norton, 
152 App. Div. 628.) 


Title 8.— Canvass by County, City and State 
Boards 

On election night, the public gets the results of elec¬ 
tion from rapid calculations made from the police 
returns, it being obviously impossible for any official 
board to collate all the figures on the statements of 
result for each election district in a short period of 
time. This figuring, however, must be done before 
the newly elected officers can receive their certificates 
of election, and the process consists in canvasses 
made by county, city and state officials, organized as 
boards of canvassers, for the special service of so 
canvassing the votes. (Hankins v. Mayor, 64 N. Y. 
18.) While the provisions of the law as to these 
official canvasses are complex and unsystematic, the 
scheme itself is simple and the canvass little more 
than successive tabulations of results until the addi¬ 
tion of figures as to each candidate authorizes a de¬ 
termination as to who is elected. The official canvass 
is invariably made, in the first instance, by county 
boards, who meet on the Tuesday next after election. 
Each county board consists of the supervisors of the 
county, except in counties in New York City, where 


116 


The New Yoek Election Laws 


it consists of the members of the board of aldermen 
elected within the county (.Sec. 430). County boards 
make their respective canvasses from the original 
statements of canvass made in the various election 
districts (Sec. 431). Their work is-purely ministerial. 
(People V. Cook, 8 N. Y. 67; People ex rel. Noyes v. 
Board of Canvassers, 126 N. Y. 392; People ex rel. 
Sherwood v. Eice, 129 N. Y. 391; People ex rel. Derby 
V. Rice, 129 N. Y. 461.) They have not even the power 
to determine that John Evans is Dr. John J. Evans 
nor can the courts compel them to do so by mandamus. 
(People ex rel. Caliban v. Hunt, 75 App. Div. 33; 
People ex rel. Kathan v. Board of Canvassers, 75 
App. Div. 110; Kortz v. Board of Canvassers, 12 Abb. 
N. C. 84.) They have the power to summon the in¬ 
spectors to make corrections where it clearly appears 
that certain matters are omitted from any statement 
or that any merely clerical error exists therein, but 
the inspectors cannot change or alter any decision 
made by them, but can only cause their canvass to be 
correctly stated (Sec. 432). ‘Thus, where the ballots 
correctly stated the name of David A. Munro, Jr., but 
the name is variously spelled and designated in the 
inspectors ^ statements, the inspectors can be compelled 
to make their statements correct. (People ex rel. 
Munro v. Board of Canvassers, 129 N. Y. 469.) 

Each county board, upon the completion of its can¬ 
vass, makes various statements, separately stating the 
result as to various candidates, and containing the 
total results in its county for all candidates and ques¬ 
tions submitted (Sec. 437). They must determine what 
per sous have been elected to the office of assemblyman 
and to county offices and school commissions, and 
their determination completes the canvass as to tho?^e 
officers (Sec. 438). 



The Election Law 


117 


In counties which contain one or more cities, except 
Buffalo, the county boards constitute the city board 
(Sec. 430) and it seems to follow that their determina¬ 
tion is final as to such city officers. 

The canvasses hj the county boards leave a further 
canvass necessary for those officers who run for office 
in more than one county, and also for questions sub¬ 
mitted. This further canvass and the determinations 
thereon are made by the board of elections in New 
York City, which sits as a board of canvassers for 
such city officers (Sec. 440), and by the state board 
of canvassers, which makes the final canvasses as 
to all other officers and as to questions submitted 
(Secs. 439, 441). Their duties are also purely min¬ 
isterial. (Matter of Hines, 141 App. Div. 569.) The 
state board consists of the secretary of state, attor¬ 
ney-general, comptroller, state engineer and surveyor 
and treasurer (Sec. 441). Both the state board and 
the board of elections canvass the certified copies of 
the statements of the county board of canvassers 
(Secs. 440, 442). 

The secretary of state delivers certificates of elec¬ 
tion based on certified copies of the determinations 
filed with him (Sec. 443). 


ARTICLE IX 

BALLOTS AT GENERAL ELECTION 

Title 1.— The Official Ballot 

Printing: The custodian of primary records or board 
of elections prepares and prints the official ballots 
{ante, p. 65). It must have the same in its possession 


118 


The New Yoek Election Laws 


and open to public inspection four days before the 
election for which they are prepared. It must have 
sample ballots ready five days before election and must 
supply them to voters who apply therefor (Sec. 342). 
No ballot without the official indorsement shall be 
allowed to be deposited in the box, except where 
unofficial ballots are authorized to be used {post^^. 121) 
and none but ballots provided in accordance with the 
provisions of the law shall be counted (Sec. 359. See, 
however, ante, p. 65). 

Form: The official ballot, as the term is used, refers, 
in ordinary parlance, to the ballot for general officers 
which, under the Massachusetts Ballot Act of 1913, is 
now of the form known as the Massachusetts form. 
As a matter of fact, however, the election law provides 
for five kinds of official ballots, called, respectively, 
(1) ballots for presidential electors, (2) ballots for 
general officers, (3) ballots upon constitutional amend¬ 
ments and questions submitted, (4) ballots upon town 
propositions, and (5) ballots upon town appropria¬ 
tions, which are to be used for the purposes which 
their names severally indicate and not otherwise. The 
ballots for general officers contain the names of 
all candidates, except presidential electors. Each 
political organization whose party name contains more 
than eleven letters selects an abbreviated form there¬ 
for containing not more than eleven letters which shall 
be used upon the ballot whenever the necessity of space 
so requires. The abbreviation shall be certified at 
the same time and in the same manner as party names 
are required to be certified. In printing the names of 
candidates whose full names contain more than six¬ 
teen letters, not more than one name, other than 
the surname, shall be printed in full and each candi¬ 
date may indicate, in writing, to those charged with 


The Election Law 


119 


the duty of preparing the ballots, the form in which, 
subject to this restriction, his name shall be printed 
(Sec. 331). 

Ballots for Presidential Electors: The names of the 
presidential electors of each party shall be printed 
in one column containing, first, the electors at large, 
and, second, the elector of each district. The columns 
shall be parallel and there shall also be a blank column 
in which voters may write the names of candidates 
not on the ballot. At the head of each party column 
is printed the party emblem, below this a blank circle, 
below this the party name, below this the names of 
the candidates for president and vice-president and 
below this a heavy line followed by the column con¬ 
taining the names of the electors. Each party circle 
shall be surrounded by the instructions for a 
straight ticket mark within this circle.’’ In arrang¬ 
ing the columns precedence shall be given to the 
several parties according to the number of votes 
for governor polled at the last gubernatorial election 
(Sec. 331). 

Ballot for General Officers: In the case of ballots for 
general officers, the Massachusetts Ballot Act abol¬ 
ished the party column. The names of all candidates 
for any one office are printed in a separate section and 
the sections are in the customary order of offices. In 
arranging the names precedence of candidates is given 
to the candidate of the party which polled the highest 
number of votes for governor at the last preceding 
gubernatorial election, and so on. At the bottom of 
each section, as many separate spaces as there are can¬ 
didates to be elected are left blank, so that the voter 
may write in the names of any candidates not on the 
ballot. 

Excepting where a candidate for the office of gov¬ 
ernor only is nominated by more than one political 


120 


The New York Election Laws 


organization there is printed on each line below the top, 
from right to left, the party emblem, the voting square, 
the candidate's name and the name of his party. 

In any case where a candidate for public office is 
nominated by more than one political organization, the 
party names and emblems of such organizations shall 
appear. 

In case a candidate for the office of governor only 
is nominated by more than one political organization 
the voting squares are in the same column as the 
emblems and arranged horizontally thereunder, so that 
it may be determined what party secures the highest 
vote for governor (Sec. 331). 

Form of Ballot for Questions Submitted: The-read¬ 
ing form of each proposed constitutional amendment 
or other question submitted shall be printed in a 
separate section. At the left of each question shall 
appear two voting spaces, one above the other, one 
preceded by the word Yes ’’ and the other by the 
word ‘‘ No (Sec. 332). 

Title 2.— Sample Ballots 

The board of elections must keep sample ballots on 
hand five days before election (Sec. 342). In addition 
to this, sample ballots of each kind equal in number 
to twenty-five per cent, of the number of official ballots 
must be provided for every polling place. They must 
be printed on paper of different color from any of the 
official ballots. One of each kind of sample ballots 
at any time on the day of election must be furnished 
upon application to any voter entitled to vote at that 
polling place and may be taken away by him from such 
polling place before receiving such official ballot or 
ballots (Sec. 333). 


The Election Law 


121 


Title 3. — Unofficial Ballots 

If the official ballots required to be furnished shall 
not be delivered at the time required, or if, after de¬ 
livery, shall be lost, destroyed or stolen, the proper 
officials shall cause other ballots to be prepared, as 
nearly in the form of the official ballots as practi¬ 
cable, but without the indorsement, and, upon proper 
proofs, the inspectors of election shall cause these 
unofficial ballots to be used in the same manner, as 
near as may be, as the official ballots (Secs. 345, 
360). 

Defective official ballots are not unofficial ballots. 
(People ex rel. Nichols v. Board of Canvassers, 129 
N. Y. 395.) 


AETICLE X 
MARKING THE BALLOT 
Title 1.— Statutory Rules 

Although the Massachusetts Ballot Act provides for 
five different forms of ballot, including the Massachu¬ 
setts form of ballot for general officers and the party 
column ballot for presidential electors, it struck from 
the election law the numerous and complicated rules 
which formerly bewildered the courts and the voters 
alike (Saxe, on Elections, Ed. 1, pp. 104-109), and 
substituted in place thereof the following simple statu¬ 
tory rules : 

(1) To vote for an entire group of presidential 
electors of any party by means of a single mark, he 
shall make a cross mark in the circle above the party 
column. 

(2) To vote for any candidate on any ballot, except 
for an entire group of presidential electors by means 
of a single mark, he shall make a cross mark in the 
voting square at the left of the candidate's name. 


122 


The New York Election Laws 


(3) If a voter makes a cross mark in the circle 
above a party column and also makes a cross mark in 
one or more voting squares at the left of the names of 
one or more presidential electors, or writes in a name 
or names, he shall be deemed to have voted for the 
electors whose names are thus specially indicated, and 
also for all the electors on the ticket so marked in 
the circle, except those whose names are opposite to 
the names so specially indicated. 

(4) To vote for any candidate not on the ballot, 
he shall write the candidate’s name on a line left blank 
in the appropriate place. 

(5) To vote on any constitutional amendment or 
question submitted, he shall make a cross X mark in 
the appropriate voting square at the left of the ques¬ 
tion as printed on the ballot. 

(6) If the voter marks more names than there are 
persons to be elected to an office or if for any other 
reason it is impossible to determine his choice of a 
candidate for any office, his vote shall be counted as 
blank for that office. 

(7) Where a candidate for governor has been nom¬ 
inated by two parties and the voter marks in both 
squares, his vote for governor shall be counted, but 
he shall not be recorded as voting with any party 
(Sec. 358). 

Title 2.— Cross Marks and Marks Other than a 
Cross Mark 

Statutory Provisions: A valid voting mark is now 
defined as any straight line crossing any other 
straight line at an angle within a circle or voting 


The Election Law 


123 


square/’ In addition to this, the statute provides 
that it is not lawful to make any mark other than the 
cross mark for the purpose of voting and that a void 
ballot is one upon which there shall be found any mark 
other than a cross mark made for the purpose of 
voting, but no ballot shall be declared void because a 
cross mark thereon is irregular in character (Secs. 10, 
82, 86, 3'58). 

Whether a ballot is so marked as to be void presents 
a question of law to be determined on the face of the 
ballot. (People ex rel. Feeny v. Board of Canvassers, 
156 N. Y. 36; People ex rel. Krulish v. Fornes, 175 N, 
Y. 114; People ex rel. Courtney v. Unger, 85 App Div. 
249.) 





Fallon Ballot 
No. 79 
Fig. 1 


DeGroot Ballot 
No. 39 
Fig. 2 


Fallon Ballot 
No. 112 
Fig. 3 


Distinctions: In the first place, it should be borne in 
mind that a mark in addition to a cross mark, whether 
made for the purpose of voting or otherwise, may be a 
part of the cross mark itself, making a three-line mark, 
irregular in character (Fig. 1), or it may be wholly dis¬ 
connected with the cross mark (Fig. 2), possibly even 
appearing in a separate circle (Fig. 3), These two 
classes of additional marks must be considered sep¬ 
arately, because, in one case, the question to be deter¬ 
mined is whether the voter has made a valid voting 
mark, while, in the other, the question is whether cer’ 


124 The New York Election Laws 

tain additional lines appearing on the ballot make the 
ballot void, although the voting mark may be valid. 

Additional Marks Disconnected With the Cross Mark: 
In Matter of Fallon (197 N. Y. 336), and Matter of De- 
Groot (197 N. Y. 589; 213 N. Y. 627), the court of ap¬ 
peals passed upon a number of ballots which bore 
marks in addition to and disconnected from the voting 
mark, and the court uniformly held such ballots to be 
valid. Examples of two of these valid marks are given 
in Figures 2 and 3. Similarly, Judge Lambert, in try¬ 
ing the recount of ballots upon the Hearst-McClellan 
recount, passed upon many ballots bearing long or 
short, dark or light lines, which he uniformly ruled to 
be accidental. (Judge Lambert’s Rulings on the Mark¬ 
ings of Ballots by John G. Saxe. See also People ex 
rel. Feeny v. Board of Canvassers, 156 N. Y. 36, Ballot 
145.) The most recent decision is Matter of Garvin, 
Law Journal, June 9, 1915. There the appellate divi¬ 
sion held thirty-two ballots bearing extra dots to be 
valid. 

Irregular Cross Marks: Under the law as amended 
by Chap. 296 of the Laws of 1911 (Saxe law), any cross 
mark is a valid voting mark which contains' any line 
crossing any other line. A three-line cross or a tit-tat- 
to mark is as valid as a simple two-line cross. This ap¬ 
pears clearly from the law itself and from Matter of 
Garvin, supra, when -the court disposed of twenty-one 

irregular cross marks,” as follows: 

. They were all valid under the definition of the 
statute as it now exists . . . and the interpretation 
of voting- marks given by the courts in the matter of. 
Fallon, Matter of De Groot and Judge Lambert’s 
rulings on the marking of ballots upon the Hearst- 
MoClellan recount as published by John G. Saxe.” 

History of Cross Mark Law: The election law of 
1896 (Laws of 1896, Chap. 909) defined a valid voting 
mark as one straight line crossing another straight 
line” (Sec. 105), and that definition remained in the 
law, without change, until the enactment of the Saxe 


The Election Law 


125 


law. During the intervening period, however, the leg¬ 
islature made changes in the rules construing the in¬ 
tent of voters in making a voting mark. Thus, Chap. 
335 of the Laws of 1898 added a rule including among 
void ballots a ballot upon which there shall be found 
any voting mark other than the cross mark made for 
the purpose of voting ” (Sec. 110); and Chap. 654 of 
the Laws of 1901 amended this rule by adding the word 
single,’’ so that the phrase read a ballot upon 
which there shall be found any mark other than a 
single cross mark made for the purpose of voting.” 
This latter amendment followed a decision of the court 
of appeals adopting a liberal construction of the foa-mer 
statute. (People ex rel. Feeny v. Board of Canvassers, 
supra.) In Matter of Fallon, supra, the court held 
that the construction of the statute, so far as it requires 
‘‘ one straight line crossing another straight line,” 
should be liberal because it is practically impossible 
for a person to make a line that is technically straight 
without the use of mechanical appliances ” and, while 
making extremely liberal rulings on many voting 
marks, it held that the word ” single,” added by the 
legislature after the Feeny decision and the use of the 
word one ” in the phrase ” one straight line crossing 
another straight line ’ ’ required it to declare a number 
of crosses to be void. (See also Thacher v. Lent, 71 
App. Div. 483.) The Saxe law of 1911 met the Fallon 
decision squarely, by striking from the statute both the 
word ‘ ‘ single ’ ’ and the word ‘ ‘ one ’ ’ and by provid¬ 
ing, in addition, that no ballot should be declared void 
because a cross mark thereon was irregular in char¬ 
acter. Under the provisions of the statute as thus 
amended, the constructive definition of a voting mark 
is more liberal than it has ever been, legalizing any 
line crossing any other line and not merely one line 
crossing another line. The destructive provision as to 
void ballots no longer contains the word ” single ” 
and, to settle all doubt, the saving clause provides that 
no ballot shall be declared void because a voting mark 
thereon is irregular in character (Secs. 10, 82, 86, 358). 


126 The New York Election Laws 


For instance, the court of appeals, in Matter of Fal¬ 
lon, supra, held the following voting marks to be valid. 



Fig. 4 Fig. 5 Fig. 6 Fig. 7 Fig. 9 


and the following voting marks to be void: 



Fig. 9 Fig. 10 Fig. 11 Fig. 12 Fig. 13 

Under the Saxe law, each and every one of these 
voting marks is unquestionably valid. (Matter of Gar¬ 
vin, Appellate Division, Law Journal, June 9,1915.) 


Miscellaneous Marks: There are also a few other 
voting marks which occasionally appear. 



From Judge Lambert’s Ruling ou the Marking of Ballots by John G. Saxe 
Fig. 16 Fig. 17 Fig. 18 Fig. 19 



The Election Law 


127 


The cross mark in Figure 14 is a valid mark. It is 
immaterial if the arms of the cross mark extend beyond 
the circle providing they cross within it (Matter of 
Fallon, supra; see also People ex rel. Pierce v. Park- 
hurst, 24 Misc. 442 ; Ballots V, W), but the law requires 
the voter to make the lines cross within the voting 
space, so that the cross mark in Figure 15 renders the 
ballot void. (People ex rel. Wells v. Common Council, 
154 N. Y. 750, affirming, on opinion of Parker J., below, 
19 App. Div. 457.) The ‘‘ T in Figure 16 and the 
check mark in Figure 17 do not contain any line cross¬ 
ing any other line and are void (Matter of Garvin, 
supra), although where a ballot contains a number 
of crosses and the voter has carelessly failed to com¬ 
plete one of them, the^ courts usually sustain the valid¬ 
ity of the ballot. (People ex rel. Pierce v. Parkhurst, 
supra; Judge Lambert’s Rulings, supra). The cross 
mark, with feet, in Figure 18 was held valid by Judge 
Lambert and is undoubtedly valid under the Saxe law. 
The hour glass in Figure 19 was held invalid by Judge 
Lambert, but is validated by the Saxe law. 

Effect of Saxe Law on Recounts: The Saxe law thus 
gives effect to the real intention of voters. It also goes 
a long way to prevent recounts. Unsatisfactory con¬ 
ditions of many polling places, poor eyesight and 
clumsy fingers result in a multitude of irregular voting 
marks in every polling place at every election. (People 
ex rel. Moran v. Sniffin, 123 App. Div. 730; Matter of 
Hearst, 48 Misc. 453), so that the courts early recog¬ 
nized that, to hold every ballot void on which a mark 
was found which was not a single ” cross mark con¬ 
sisting of ‘ ^ one straight line crossing another straight 
line,” would be to annually disfranchise a substantial 
portion of the electorate and make elections a farce. 



128 The Xew York Election Laws 

Thus the courts, from the first, imposed upon the stat¬ 
utory definition of a cross mark the further question 
of the voter’s intent — was his mark made for the pur¬ 
pose of voting or did he intend to identify his ballot? 
— and if they found that the voter did not mark his 
ballot for identification, they held the ballot valid. Yet 
once the courts departed from the statutory definition, 
they found themselves in a legal puzzle department 
that permitted of an endless diversity of guess work 
for its various solutions. This condition led to re- 
counts every year, which did nothing but afford oppos¬ 
ing counsel an opportunity to display ingenuity as to 
what the various voters intended; and an examination 
of some of the highest court’s decisions in the Fallon 
case indicates that, in recounts* at least, it was truly 
only the court of last conjecture.” (Compare 
Figures 4 to 8 with Figures 9 to 13.) The stricter the 
rulings the greater the opportunity for legal guess 
work and the greater chance upon a recount, and yet 
recounts really were no more likely to be correct than 
the original canvass by the inspectors. Thus, Judge 
Lambert, after presiding over the counting of six hun¬ 
dred thousand ballots in the Hearst-McClellan recount, 
charged the jury, with great significance, that ‘‘ it 
must appear plain to you, as it does to me, that the ac¬ 
curacy of the original count of the votes was quite as 
correct as we have reached in this proceeding.” The 
Saxe law, by enacting a liberal construction of voting 
marks, effectually ended guess work as to the voters’ 
intent. Recounts have been rare occurrences ever 


since. 


The Election Law 


129 


Title 3.— Black Leah Pencils. Writings. Erasures. 

Tears 

The election law provides that it shall not be lawful 
to deface or tear a ballot or make an erasure. Any 
mark other than a cross mark makes the whole ballot 
void. 

Black Lead: The use of purple lead (People ex rel. 
Obert V. Bourke, 30 Misc. 461, 465), ink or blue pencil 
clearly invalidates the ballot (Sec. 358; Judge Lam¬ 
bert ^s Rulings, supra). 

V/ritings: Ballots containing the names of candi¬ 
dates written in the blank column whose names are 
already printed on the ballots are void. (People ex 
rel. Feeny v. Board of Canvassers, supra; Judge Lam¬ 
bert >s Rulings, supra.) If the written name is mis¬ 
spelled, however, there is no presumption of identity 
and the ballot is valid. (People ex rel. Obert v. Bourke, 
30 Misc. 461.) In writing a name on a ballot, a cross 
mark should not be used. (Jackson, A.-G., A.-G., Rep. 
of 1907, p. 555.) If a voter, in the honest belief that a 
vacancy exists for an office not printed on the ballot, 
writes in the name of the office and of his candidate 
therefor, his ballot is otherwise good, even if there is 
no such vacancy. (People ex rel. Dietz v. Hogan, 214 
N. Y. 216; Matter of Murphy, 165 App. Div. 304) 

Crosses Opposite Blank Spaces: These are void. 
(Matter of Garvin, Appellate Division, Law Journal, 
June 9, 1915.) 

Erasures: Ballots objected to because of erasures, 
cancellations or for being defaced cannot be counted. 
(Sec. 358; People ex rel. Feeny v. Board of Canvass¬ 
ers, supra; People ex rel. Obert v. Bourke, supra; 
Judge Lambert’s Rulings, supra.) 

Tears: Torn ballots are held to be valid, unless the 
tears conclusively appear to have been the act of the 
5 


130 


The New York Election Laws 


voter. (Sec. 358; Thacher v. Lent, 71 App. Div. 483; 
Judge LambertKulings, supra.) 

Inclosures: If a voter does any act extrinsic to the 
ballot itself, such as inclosing any paper or other ar¬ 
ticle in a folded ballot, such ballot is void (Sec. 358). 

Title 4.— Alterations Subsequent to Voting 

The validity and effect of a ballot must, of course, 
be determined as of the time the ballot is placed in the 
ballot box. In case it is determined as a fact by cred¬ 
ible evidence that a mark or erasure thereon, which 
would invalidate or change the effect of the ballot if 
made by the voter, was made by some one after the 
ballot was voted, the validity and effect of the ballot 
must then be determined precisely as though the sub¬ 
sequent alteration had not been made. 

Title 5. — Straight and Split Voting of Massachu¬ 
setts Ballot 

Ballots for General Officers: In voting a ballot for 
general officers, it must again be stated, at the risk of 
repetition, that the voter votes either a straight or a 
split ticket in precisely the same way, by making a 
single cross mark for each candidate for whom he 
wishes to vote (Sec. 358, Rule 2). 

Title 6.— Straight and Split Voting of Party 
Column Ballots 

The ballot for presidential electors remains in the 
party column form. The voter votes a straight ticket, 
that is, for each and every candidate of one party for 
elector by making a voting mark in the circle above the 
name of the party at the head of the ticket (Sec. 358, 
Rule 1). The voter may split a ballot for presidential 
electors in either of two ways — he may make a cross 
mark in the circle above the party column and also make 
a cross mark in one or more voting squares at the left 


The Election Law 


131 


of the names of the candidates for whom he wishes 
particularly to vote and he then shall be deemed to 
have voted for the electors whose names are thus 
specially indicated and also for all the electors on the 
ticket so marked in the circle, except those whose 
names are opposite to the names so specially indicated 
(Sec. 358, Rule 3). He may . also make a cross 
mark in the voting place at the left of each and 
every candidate for whom he wishes to vote (Sec. 358, 
Rule 2). 

Title 7.— Ballots Makked in Two or More Circles 

Party Column Ballots: The ballots for presidential 
electors are party column ballots and some voters may 
make the error of voting in two party circles. A voter 
cannot vote for two sets of candidates. A ballot 
marked in two circles is ordinarily void or blank. If, 
however, it should happen that the name of some can¬ 
didate appeared in both columns, the ballot should he 
counted for him and blank for the others. (People 
ex rel. Feeny v. Board of Canvassers, supra, 41; Mat¬ 
ter of Fallon, Ballots 111, 120; but see Ballot 143, 
contra.) Similarly, where the name of a particular 
candidate appears on one ticket and there is no nom¬ 
ination on the other, the ballot should also be counted 
for him. (Matter of Fallon, Ballots 34, 51, 113, 164; 
but see Ballot 101, contra.) 

Matter of Jerome (48 Misc. 441) presented a some¬ 
what different question in that District Attorney 
Jerome’s name was the only name in his column, so 
that the specific intention to split a party vote for him 
was as indubitably expressed by making a mark in the 
circle above his name as by making it in the voting 
space before his name and the court (Giegerich, J.) 
held either method equally valid. Indeed, the court 
went even further and held the voter could mark a 
Jerome ballot both ways and the extra cross would be 


132 


The New York Election Laws 


surplusage. The most radical decision of all — and 
one which is questionable—is one holding that, if a 
voter marks in two party circles, but, in addition, 
makes a voting mark for a candidate for some office on 
one of such tickets, his vote may be counted for the 
candidate so indicated, although he has an opponent 
on the other ticket. (People ex rel. Moran v. Sniffin, 
123 App. Div. 730. See contra, Matter of Holmes, 
30 Misc. 127.) 

Ballots for Questions Submitted: If a voter votes 
both ‘ ‘ yes ’ ^ and ^ ‘ no ’ ^ upon a single proposition his 
vote is obviously blank for that proposition, but it has 
been held that his vote for other propositions on the 
same ballot may still be counted. (Tamney v. Atkins, 
151 App. Div. 309, reversed on a question of procedure, 
209 N. Y. 202. 

Title 8.— Ballots Defectively Printed 

The effect of defects in printing the ballot has 
already been considered in connection with printing 
the ballot {ante, p. 65). 


ARTICLE XI 
TOWN MEETINGS 

The election law at one time was not generally appli¬ 
cable to town meetings. (Matter of Larkin, 163 N. Y. 
201.) As now written, however, it contains many 
references to to^nis, town offices and town meetings 
(Sees. 45,122, 132,133,183, 29G-298, 311, 312, 316, 318, 
332, 340, 341, 393, 419); and the town law expressly 
provides that it shall be applicable in most cases 
(Town Law, Articles 25-31). The provisions of the 
election law as to the review of ballots, however, do 
not apply to town meetings held at a different date 
than that of a general election. (Matter of Larkin, 
163 N. Y. 201; Matter of Baldwin, 80 Misc. 263.) 


The Election Law 


133 


ARTICLE XII 

VILLAGE ELECTIONS TO DETERMINE PROPOSITION 
FOR INCORPORATION 

The village law contains special provisions for 
elections to vote upon a proposition to incorporate 
(Secs. 2-20), including an appeal to the appellate 
division, which may set aside an election. (Sec. 18; 
Matter of Village of Webster, 102 App. Div. 202.) 
Under a former statute, a second election was a finality 
(People V. Snedeker, 160 N. Y. 350); but tlie present 
law permits any number of elections and appeals 
(Sec. 20). 

ARTICLE Xin 

SOLDIERS AND SAILORS ELECTIONS IN TIME 
OF WAR 

Whenever, in time of war, any qualified voter is in 
the actual military sendee in the army or navy of the 
state or of the United States and by reason thereof 
absent from his election district, he shall be entitled 
to vote as fully as if he were present at his place of 
residence (Sec. 500). Polls are held at the quarters 
of an officer (Sec. 507) and the voter votes an official 
war ballot (Sec. 503). 

ARTICLE XIV 

ELECTION OF UNITED STATES SENATORS AND 
REPRESENTATIVES IN CONGRESS 

Title I. — In General 

State Legislatures: The United States Constitution 
provides that the times, places and manner of holding 


134 


The New Yoek Election Laws 


elections for senators and representatives shall be pre¬ 
scribed in each state by the legislature thereof, but 
congress may, at any time, by law, make or alter such 
regulations, except as to the places of choosing sen¬ 
ators (Sec. 4, subd. 1). 

Congress: It also provides that each house shall be 
the judge of the elections, returns and qualifications of 
its own members (Sec. 5, subd. 1). 

Executive Writ: The United States Constitution 
also provides that when vacancies happen in the repre¬ 
sentation from any state in the house of representa¬ 
tives, the executive authority thereof shall issue writs 
of election to fill such vacancies (Sec. 2, subd. 5); 
and the recent constitutional amendment providing for 
the election of senators by the people makes a similar 
provision when vacancies happen in the representation 
of any state in the senate (Article XVII, subd. 2, in 
etfect May 31, 1913). The reason for the requirement 
of an ‘ ^ executive writ ’ ’ is that vacancies must be filled 
and not be permitted to continue. The constitution 
does not dictate to the several states the form of their 
respective executive governments, nor their respective 
systems of election, but it imposes.upon the executive 
authority or department of any state in which a va¬ 
cancy occurs the duty of issuing whatever process may 
be necessary under the state law to set in motion the 
election machinery of such state, and then it delegates 
to the legislature of each state power unlimited and 
duty imperative of prescribing ‘ ‘ the times, places and 
manner of holding elections for representatives.’^ In 
New York State the secretary of state is the ‘‘execu¬ 
tive authority ” in respect to elections (Secs. 293, 450, 
129) and it is he who issues the writ of election (Sec. 
293). No proclamation by the governor is necessary, 


The Election Law 


135 


except for a special election (Matter of Wilkins, 158 
App. Div. 523), that is, an election not held on the day 
of a general election (Sec. 292). 

Decisions by Congress: Under these various consti¬ 
tutional provisions, congress has held that, where a 
state legislature has made provision for vacancies and 
elections, such statutes are mandatory. (Patterson v. 
Belford, 45th Congress, KowelPs Digest, 324, 325; 
Strobach v, Herbert, 47th Congress, PowelPs Digest, 
362, 363.) It has also held that it is a well established 
and most salutary rule that, where the state courts of 
a state have given a construction to its constitution 
or statutes, that construction will be followed by con¬ 
gress. This rule has been held by congress to be 
‘^absolutely necessary’’ to the harmonious working 
of our complex government, state and national. (Ten¬ 
nessee Election, 42d Congress, Rowell’s Digest, 261, 
262, 263; California Case, 49th Congress, Rowell’s 
Digest, 421; Noyes v, Rockwell, 52d Congress, Rowell’s 
Digest, 476.) 

Determination of Election: Each house is the judge 
of the elections, returns and qualifications of its own 
members (U. S. Constitution, Article I, Sec. 5). A 
candidate for either house may rightfully demand the 
aid of the state courts to enforce his rights under the 
state law in respect to the canvass or to his certificate 
of election (People ex rel. Brown v. Freisch, 153 Suppl. 
277; Florida ex reL Bisbee v. Board of Canvassers, 
17 Fla. 9); but quo warranto does not lie (State 
ex rel. McDill v. Board of Canvassers, 36 Wis. 498; 
State ex rel. McCue v. Blaisdell, 18 N. D. 55; State 
ex rel. Barker v. Bowen, 8 S. C. 400; Nebraska ex rel. 
Wakely v. Lockwood, 3 Wall. 236). 


136 


The New York Election Laws 


Title 2.— Election of United States Senators 

Pursuant to the most recent amendment to the 
federal constitution, United States senators are now 
elected by the people (Article XVII), and in December, 
1913, the New York legislature enacted a law providing 
for the direct election by the people of United States 
senators from New York State (Sec. 449, added b}^ 
Laws of 1913, Chap. 822), and made adequate pro¬ 
vision for the nomination of senators at direct pri¬ 
maries and their direct el-ection by the people at the 
Buccee<ling election. The Governor is authorized to 
fill a vacancy pending an election. (Secs. 45, 48, 449). 


Title 3.— Representatives in Congress 

The election law provides that a vacancy in the house 
of representatives occurring before October 15th in 
any year must be filled at the general election held 
next thereafter, unless previously filled at a special 
election. Upon the failure to elect to the office of 
representative in congress or upon the occurrence of 
a vacancy therein, the governor, in his discretion, may 
make a proclamation of a special election to fill such 
office, but a special election shall not be held to fill 
such a vacancy unless such vacancy occurs on or before 
the first day of July of the last year of the term of 
office or unless it occurs thereafter and a special ses¬ 
sion of congress is called to meet before the next gen¬ 
eral election or is called after October 14th of such 
year (Sec. 292). The election law also contains pro¬ 
visions on questions of procedure in the case of a rep¬ 
resentative resigning (Sec. 450). 


The Election Law 


137 


ARTICLE XV 
VOTING MACHINES 

The board of elections of the city of New York and 
the common council of any other city, the town board 
of any town, or the board of trustees of any village, 
may adopt voting machines for use at general elections 
(Sec. 393). A state board of voting machine commis¬ 
sioners, appointed by the governor (Sec. 390), must 
examine, on application, any proposed voting machine 
and report on its accuracy, efficiency and capacity to 
register the will of voters; and if their report states 
that the kind of machine so examined can be safely 
used by voters at elections, under the conditions pre¬ 
scribed in the election law, it shall be deemed approved. 
No form of machine not so examined and approved 
can be used (Sec. 391). 

A voting machine must be so constructed as to pro¬ 
vide facilities for voting for such candidates as may 
be nominated, to permit an elector to vote for any 
person for any office, to permit voting in absolute 
secrecy and to prevent a voter from voting for a can¬ 
didate or on a proposition for whom or on which he is 
not legally entitled to vote (Sec. 392). 

The order of the lists or names of candidates of tlie 
several parties or organizations must be arranged as 
provided for blanket ballots (see Sec. 331, antej p. 118), 
except that they may be arranged either vertically or 
horizontally. When the same person has been nom¬ 
inated for the same office to be filled at the election by 
more than one party or independent body, all the pro¬ 
visions relating to the official ballot shall apply and 
the voting machines must be so adjusted that his name 
shall appear but once on the ballot (Sec. 397). 


138 


The New Yokk Election Laws 


The question of regulating voting machines so as to 
comply with the Massachusetts form of ballot is one 
fraught with some difficulty and one which caused a 
great deal of confusion at the election in 1914. In most 
cases the voting machines were constructed with the 
parties arranged horizontally and the offices perpen¬ 
dicularly. Where a candidate of one party was also 
nominated by another party, the machines were so 
constructed that the candidate’s name appeared in the 
horizontal row of the party nominating him which had 
the uppermost row, and did not appear in the hori¬ 
zontal row of the party nominating him which had a 
lower row, with the result that the voters of the latter 
party, who wished to vote a straight ticket, did not 
have the same facility as those of the ^ ‘ upper ’ ’ party 
to pull a straight row of levers, but were obliged to 
pull a lever in a higher row when they came to such 
office or omit to vote for the particular office alto¬ 
gether. In view of this situation, numerous applica¬ 
tions were made to secure some remedy. In several 
cases, applications were made to dispense with voting 
machines altogether and to require the printing of 
paper ballots. In other cases, application was made 
to require the voting machines to be reconstructed, 
in technical violation of the statute, so that the can¬ 
didate’s name would appear more than once on the 
ballot, appearing in all the rows of the parties by 
whom he was nominated. These applications were 
based on two grounds, first, that the law, in so far 
as it provided that the name of a candidate should 
appear but once upon the ballot, was unconstitutional 
(Hopper V. Britt, 203 N. Y. 144), and second, on 
the ground that it was unfair to permit the voters 
of one party, in voting a straight ticket, to pull a 
row of levers running in a row, while the voters of 


The Election Law 


139 


other parties were compelled to pull a row of levers 
which were not in a row. The courts are reluctant to 
attempt to interfere to regulate the use of voting ma¬ 
chines (People ex rel. Hotchkiss v. Corwin, 152 App, 
Div. 920); and, while, in some cases, the court required 
the machines to be reconstructed so that the name of 
the candidate would appear as many times as he was 
nominated (Keogh, J., and Kudd, J.); in most of the 
cases the courts declined to interfere with the ma¬ 
chines, either on the ground that the application was 
made too late (Andrews, J.) or upon the merits 
(Sutherland, J.) or otherwise (Laughlin, J.). In the 
case before Justice Sutherland, he held, in effect, that 
the present statute is constitutional. His reasoning 
was that, in Hopper v. Britt (203 N. Y. 144), the law 
held unconstitutional permitted voters of one party to 
vote a straight ticket by a single cross mark, while the 
voters of another party were not permitted to do so; 
whereas the present law requires every voter to pull 
as many levers as there are candidates for whom he 
wishes to vote. 

The real problem is mechanical; being based on the 
difficulty of setting up a Massachusetts form of ballot 
on the face of a voting machine; and it seems that the 
legislature should examine into this subject and make 
an amendment of the law requiring voting machines 
to be uniform in character and make adequate provi¬ 
sion that a candidate nominated by more than one 
party shall be sure to receive the number of votes cast 
for him on both tickets. 

The provisions of the election law and the penal law 
relating to elections apply as far as practicable to 
voting machines (Sec. 417), hut the law contains a 
good many provisions applying specially to voting by 
voting machines (Secs. 390-421). 


140 


The New York Election Laws 


The authorities of any city, town or village author¬ 
ized to adopt a voting machine may provide for the 
experimental use of a machine at an election in one or 
more districts, without a formal adoption thereof, and 
its use at such election shall be valid (Sec. 394). 


ARTICLE XVI 
OFFICERS 

Title 1. —Ofeicers Enumerated; Relative Functions 

The election law provides for state superintendents 
of elections, their deputies and other subordinates, for 
boards of election, consisting of commissioners of elec¬ 
tion, and for their subordinates, for election officers, 
consisting of inspectors of election, poll clerks and 
ballot clerks, and for watchers and challengers. 

The superintendents of election and their deputies 
constitute what amounts to a state elections constabu¬ 
lary, possessing and exercising, among other police 
powers, all the powers exercised by a sheriff. 

The boards of election, on the other hand, are execu¬ 
tive or administrative bodies, charged with the duty of 
executing the election laws. 

Inspectors of election, poll clerks and ballot clerks 
are the election officers immediately in charge of 
the polling place. 

Title 2.— State Superintendent of Election 

Historical: The office of state superintendent of elec¬ 
tion is political in its origin and existence. Its juris¬ 
diction and duties, to a great extent, overlap the juris¬ 
diction and duties of the boards of election and the 
police. It was the republican legislature of 1898, at 


The Election Law 


141 


an extraordinary session, which first legislated on the 
subject, by creating the normally democratic counties 
of New York, Kings, Queens, Richmond and West¬ 
chester to be a new ‘ ‘ metropolitan elections district ’ ^ 
and creating' a new officer, a ‘ ^ state superintendent of 
elections for the metropolitan district ’ * to police the 
new district so created. (Laws of T898, Chap. 676; 
Morgan v. Furey, 186 N. Y. 202.) This legislation 
gave to the republican party a certain political control 
of elections in the new metropolitan district. The con¬ 
dition continued until the year 1911, when a democratic 
legislature was elected, and, thereupon, that legislature 
made the law state-wide and increased the jurisdiction 
of the office to include primary elections (Sec. 489) and 
made a slight increase in the number of deputies. In 
1915, the legislature passed a party measure,^’ re¬ 
pealing the provisions of law requiring bi-partisan 
deputies having the qualifications of'election officers, 
and the requirement of an examination before their 
appointment, and otherwise opening wide the door for 
partisan intimidation of voters in New York Cit^" 
(Laws of 1915, Chap. 678). 

Appointment of Officials: The law now provides for 
a single superintendent appointed by the governor for 
a term of four years; a chief deputy (Sec. 471), who 
shall be in charge of the* branch office in New York 
City (Sec. 472); two hundred and thirty-three other 
deputies (Sec. 474), a secretary and necessary clerks, 
stenographers, and other employees, all appointed 
without nomination (Sec. 471). 

Removal: The superintendent may be removed in 
the same manner as a sheriff (Sec. 471). All other 
officials may be removed by him at pleasure (Secs. 
471,474). 


142 


The New York Election Laws 


Superintendent: The superintendent and the depu¬ 
ties possess and exercise all the powers vested in a 
sheriff, as a conservator of the peace, either by statute 
or common law (Sec. 472). The superintendent has 
direction and control of all deputies and must assign 
them to election districts (Secs. 475, 479) and may 
make rules for their control and conduct (Sec. 475). 
He must, however, assign one hundred and fifty-seven 
deputies to duty in New York City (Sec. 475). The 
superintendent, or any deputy, may call on any per¬ 
son or public officer to assist them in the performance 
of their duty (Sec. 476). The superintendent may 
issue subpoenas, including subpoenas duces tecum, for 
the purpose of investigating any matter within his 
jurisdiction and of aiding in enforcing the provisions 
of the law (Sec. 477). The affidavit of a superintend¬ 
ent or deputy is made presumptive evidence under 
certain circumstances (Sec. 153; Matter of Morgan, 
114 App. Div. 45). The superintendent or chief dep¬ 
uty and any designated deputies may administer oaths 
and affirmations (Sec. 478). The superintendent may 
attend at any election and each deputy, on election 
day, must attend the election at the- polling place^ to 
which he is assigned. The superintendent and each 
deputy must be admitted at any time within any poll¬ 
ing place and within the guard-rail thereof. It is the 
duty of the superintendent and of each deputy, during 
the election, to preserve order and to arrest any person 
violating or attempting to violate the law (Sec. 479). 

The superintendent is also required to keep a card 
index of registered voters, prepared by the various 
inspectors of election at the time of registration 
(Sec. 485), and to prepare challenge lists for the pro¬ 
tection of the ballot and the intimidation of voters in 


The Election Law 


143 


New York City (Sec. 486, as rewritten by Laws of 1915, 
Chap. 678). 

Deputies: The two hundred and thirty-three depu¬ 
ties, in addition to possessing the powers of a sheriff 
(Sec. 472) and preserving order and making arrests 
at the polls at general elections (Sec. 479), are given 
broad powers; but a joker,inserted in the act of 
1935, permits the superintendent to enforce the law 
strictly in one community, presumably New York City, 
while preventing the deputies from exercising these 
powers, on their own motion, elsewhere (Sec. 475, as 
amended by Laws of 1915, Chap. 678). The law, prior 
to the enactment of this 1915 joker, provided that the 
deputy superintendents, ‘‘ when directed ’’ by a super¬ 
intendent, ‘‘ shall, or on their own motion^ or on com¬ 
plaint of any citizen of the State, may exercise these 
broad powers (Sec. 475). The 1915 amendment struck 
from the law the word or where it first appears, as 
follows: Such deputies,^’ when directed ’’ by a su¬ 
perintendent ‘‘ shall, [or] on their oivn motion, or on 
complaint of any citizen of the state, may,’’ etc., so that 
the words ‘ ‘ on their own motion ’ ’ now connect with 
the preceding ‘ ‘ shall ’ ’ instead of the following 
‘‘ may,” and become nugatory. The fertile designers 
of the ‘‘joker” did not strike out the words “on 
their own motion,” because such an amendment would 
have been likely to attract notice; but, by striking out 
the word “ or,” they successfully accomplished the 
same result and the two hundred and thirty-three 
deputies can now exercise their powers only in cases 
where they receive an express direction from the super¬ 
intendent, or where there is a citizen’s complaint. The 
broad powers which they may exercise under these 


144 


The New York Election Laws 


restricted circumstances relate to arrest without war¬ 
rant, execution of warrant, investigation and inspec¬ 
tion, including, for instance, the right to visit and 
inspect any house or dwelling and interrogate any in¬ 
mate (Sec, 475). This right of inquisition, however, 
can only be exercised for investigating registration, so 
that before registration, an inmate of a lodging house 
may properly refuse to answer such a simple question 
as ‘‘Are you married?” (People v. Carleton, 41 Misc. 
523.) Deputies may now attend at primaries (Sec. 
489, as amended by Laws of 1915, Chap. 678). 

Clerks: Clerks are given power, when directed by 
the superintendents, to administer oaths and affirma¬ 
tions (Sec. 472). 

Liability: A superintendent is not liable for direct¬ 
ing a deputy to present an information to a magistrate, 
who issues a warrant thereon, without requiring suffi¬ 
cient proofs, so that an innocent citizen is wrongfully 
arrested. The superintendent could not assume that 
the magistrate would act without jurisdiction. (Tan- 
zer V. Breen, 139 App. Div. 10.) 

Lodging Houses, Dwellings, Hotels: The superin¬ 
tendent is also vested with broad supervisory powers 
over lodging houses and hotel keepers. In this con¬ 
nection, the law calls for elaborate reports to be made 
by lodging house andi hotel keepers (Sec. 480), affi¬ 
davits by hotel keepers holding liquor licenses (Sec. 
481), reports by police and certain departments (Sec. 
483), and lists to be furnished by the owner or lessee, 
of any hotel or inn containing less than fifty roomsv 
and every lodging house or dwelling (Sec. 484). The 
scope of these reports, affidavits and lists is indicated 
by the requirements of the reports to be made by 


The Election Law 


145 


lodging house and hotel keepers, which must state, 
among other things, the names of all persons living 
therein who claim a voting residence thereat and their 
color, age, height, weight, color of hair, marks on face 
or hands, complexion and any other distinguishing 
marks, and their birth place, occupation, place of busi¬ 
ness and room, and the signature of each such person 
(Sec. 480). 


Title 3.— Boaeds of Election 

The law provides for a board of elections, consisting 
of four commissioners, for the city of New York, and 
for a separate board of elections, consisting of from 
two to four commissioners, for every other county 
(Sec. 190, as amended by Laws of 1913, Chap. 800). 
Each board must be bipartisan (Constitution, Article 
2, Sec. 6; Election Law, Secs. 190,196), and is charged 
with the duty of executing the laws relating to all 
elections held within its respective cities or counties 
(Secs. 190, 206). 

In New York City, the board of aldermen appoints 
the board of elections; elsewhere, the board of super¬ 
visors (Sec. 191). These appointments are made upon 
recommendation of the two political parties which cast 
the highest and next highest vote for governor at the 
last election (Secs. 194-5). A commissioner must be 
a resident and elector of the political subdivision for 
which he is appointed and is disqualified from being a 
candidate for any elective office during his term of 
office (Sec. 191). 

At their first meeting, the commissioners organize as 
a board by electing a president and secretary. Each 


146 


The New Yoke Election Laws 


board has power to adopt rules and regulations for the 
transaction of its business and for the control and con¬ 
duct of its officers and employees (Secs. 192, 207). It 
fixes the number, salaries, duties and rank of its chief 
clerks, clerks, assistant clerks and stenographers, and 
appoints and removes at pleasure .and fixes the salaries 
of all its employees, but with certain limitations and 
exceptions (Secs. 190,197, as amended by Laws of 1913, 
Chap. 800). It is the custodian of primary records 
(Sec. 202). Its offices are public and open every busi¬ 
ness day, during hours designated by it (Sec. 207). 
On the last day to file certificates of nomination, it is 
a commendable practice to keep the office open until 
midnight. (Matter of Norton, 34 App. Div. 79, appeal 
dismissed, 158 N. Y. 130.) All records in its offices 
are public and open for inspection and for the making 
of copies. Minutes of all its meetings must show how 
each commissioner voted upon any resolution or motion 
(Sec. 208). 

Police: The police, from the commissioner ta mem¬ 
bers of the force, whenever called upon by the board, 
must render it all po’ssible assistance; and the com¬ 
missioner, upon written request, must detail to its serv¬ 
ice such patrolmen and other police as may ‘be neces¬ 
sary (Sec. 199). ■ 

Title 4*. — Election Officers 

There must be, in every election district, the follow¬ 
ing ‘‘election officers:^’ Four inspectors, two poll 
clerks, and two ballots clerks (Sec. 302), who shall 
serve at every primary (Sec. 70), general, special or 
other election held within their districts during their 
term of office. The term is one year, except for in¬ 
spectors in towns, where it is two years (Sec. 302). 


The Election Law 


147 


Qualifications: Each class of officers must be bi¬ 
partisan (Constitution, Article 2, Sec. 6; Election Law, 
Sec. 302). Their qualifications are as follows: Quali¬ 
fied voter of the county, if in New York City; or of the 
city, if in any other city, or of the election district of 
the town in which he is to serve. Good character. Able 
to speak and read English understandingly and write 
it legibly. General knowledge of the duties of the 
office. There are also a number of disqualifications 
(Sec. 302). 

Appointment: In New York City, the board of elec¬ 
tions and, in other cities, the mayor and, in towns, the 
town board (Sec. 311) appoints the election officers 
(Secs. 303, 306). This is done on nomination by the 
parties (Secs. 303, 304, 306), except that in towns the 
inspectors, upon appointment, in turn appoint the poll 
clerks and ballot clerks (Sec. 312). The nomination 
by parties is made by filing party lists, duly authen¬ 
ticated. If two factions of the same party file lists, 
the law provides for preference to the faction recog¬ 
nized by the state committee (Sec. 304). If a list in 
New York City is authenticated by the chairman of 
the county committee, as provided in the election law 
(Sec. 304, as amended hf Laws of 1915, Chap. 678), 
that list must be recognized (Sheehan v. McMahon, 44 
App. Div. 63), even if the faction represented by such 
chairman was not recognized by the preceding state 
convention, because the primary election must be re¬ 
garded as an even more authoritative recognition than 
the action taken by the state convention. (People 
ex rel. McCarren v. Dooling, 128 App. Div. 1, affirmed, 
193 N. Y. 604.) Each person proposed for appoint¬ 
ment must take an examination, unless he has served 
at any previous election (Sec. 305). 


148 


The New York Election Laws 


Vacancies and Absentees: The law suitably pro¬ 
vides for supplying vacancies and absences of inspect¬ 
ors, poll clerks and ballot clerks. The power of ap¬ 
pointment is vested in one of the remaining officers of 
the same political faith and the appointee must also 
be of the same political faith and a qualified voter of 
the district. If an inspector is absent, the remaining 
inspector appoints. If both inspectors, the poll clerk, 
or if he also is absent, the ballot clerk. If a poll clerk 
or ballot clerk is absent, the two inspectors' appoint 
(Sec. 31'3). 

Removal: In cities of the first class, the board must 
remove an election officer, without charges or notice, 
upon the written request of the official of the party who 
certified such officer's name; otherwise election officers 
cannot be removed except for cause and after notice, 
unless for improper conduct as an election officer when 
actually on duty (Sec. 308). 

Transfer Prohibited: No election officer may be 
transferred from one election district to another after 
he has entered upon the performance of his duties; 
and no election officer may serve in any county save 
that in which he resides (Sec. 308). 

Inspectors: Inspectors act as a board of registry at 
registration, as a board of inspectors during primary 
and general elections, hnd as a board of canvaJssers at 
the close of the polls (Sec. 314). They appoint one of 
their number chairman (antey p. 101) and determine 
questions by majority vote (Sec. 314). They act min¬ 
isterially, never judicially {ante, p. 10). All meetings 
of inspectors must be public. Each individual in¬ 
spector, however, has full authority to preserve peace 
and order at any meeting and at elections and to en¬ 
force obedience to his command, and may appoint 


The Election Law 


149 


one or more voters to assist him in so doing. Any 
inspector may order the arrest of any person other 
than an election officer violating or attempting to vio¬ 
late the law (Sec. 315). The inspectors^ however, un¬ 
der the pretense of keeping order, cannot turn out a 
peaceful and quiet citizen whose presence does not 
interfere with the discharge of their duties. (Horton 
V. Whister, 4 State Rep. 810.) 

Poll Clerks: Poll clerks keep a record of the persons 
voting or offering to vote and tally the votes during 
the canvass thereof. Each poll clerk at each polling 
place -has a poll book. On one of the poll clerks, 
designated by the chainnan, is also imposed the duty 
of reading the questions on the identification state¬ 
ment for election day and reading the answers thereto 
(Sec. 355). Under the provisions of the law, poll 
clerks must sign certain of their statements at cer¬ 
tain particular periods of time {ante^ p. 108). 

Ballot Clerks: Ballo.t clerks fold and deliver the 
ballots to voters. Upon the delivery of an official 
ballot the ballot clerks announce the voter’s name 
and the number of the stub, and they must make a 
similar announcement when any ballot is returned to 
them (Sec. 354). They also prepare and sign a writ¬ 
ten statement or return of ballots to be attached to the 
statement of canvass accounting for the full number 
of ballots i^eceived (Sec, 337). 

Title 5.— Watchers 

At primary elections, any political party or any 
two or more candidates may appoint one watcher for 
each election district. Any person, apparently, is 
qualified to act as such a watcher (Sec. 84). On reg- 


150 The New Yokk Election Laws 

istration days and also at general elections^ each po¬ 
litical party or independent body may appoint as 
many as two watchers for each election district. Such 
watchers must be qualified electors of the county in 
which the election district is located (Secs. 152, 352). 
At all elections, before any ballots are received, 
watchers are entitled to have the boxes examined in 
their presence (Secs. 84, 350). They may be present 
and within the guard-rail (Secs. 83, 84, 351) until 
after the completion of the canvass (Secs. 84, 88, 352). 
On registration days, they are also entitled to be pres¬ 
ent until the end (Sec. 152). At all elections, during 
the canvass, they are entitled to carefully read and 
examine any and all ballots (Secs. 85, 371). 

' At the election, 1915, there may be two women 
watchers in each polling place upon the vote on the 
proposed women^s suffrage amendment (Secs. 152, 
352, as amended by Laws of 1914, Chap-. 242). 

Title 6.— Challengeks 

At primary elections, any three or more candidates 
of each party are entitled to at least one challenger 
(Sec. 84) and at general elections, each party or inde¬ 
pendent body is entitled to at least one challenger 
(Sec. 352). Any person apparently is qualified to 
act as a challenger at primary elections, but, at gen¬ 
eral elections, a challenger must be a qualified elector 
of the county in which the election district is located 
(Sec. 352). At both primary and general elections, 
challengers are entitled to remain just outside the 
guard-rail where they can plainly see what is done 
within the rail, outside of the voting booths, from the 
opening to the closing of the polls (Secs.'84, 252). 


^art ®t)trb 

COKRUPT PRACTICES 


ARTICLE I 
IN GENERAL 

The election law contains an article dealing with the 
subject of corrupt practices, but the penal law also 
contains a number of important provisions on the 
same subject and the civil service law another; and 
in 1914 an officer of one of the parties was obliged to 
plead guilty to an indictment based upon another 
provision hidden away in the general corporation law. 
This condition of the statutory law is one which is 
likely, at any time, to work hardship on candidates 
and members of political committees and obviously 
calls for the codification of all of the provisions on 
the subject into a single law. In this part, an attempt 
will be made to collate the various provisions. 


ARTICLE II 

LEGAL EXPENDITURES AND CONTRIBUTIONS 
Title 1.— Legal Expenditukes 

The penal law distinguishes between legal expendi¬ 
tures- and contributions. It makes it a misdemeanor 
for any person to supply meat, drink, tobacco, re¬ 
freshment or provisions, other than as part of the 
traveling expenses of candidates, political agents, com¬ 
mittees or public speakers, or to pay, lend or con- 

[ 151 ] 


152 


The New York Election Laws 


tribute any money or other valuable consideration 
for any other purpose than a* list of purposes which 
are known as ‘‘ legal expenditures.’^ This list in¬ 
cludes rent of halls, compensation of public speakers, 
music, fireworks, carriages, food for watchers, travel¬ 
ing expenses and the like (Sec. 767). 

Title 2.— Limits of Aggregate Legal Expenditures 
AND Contributions 

The penal law limits the. amounts to be expended by 
a candidate for a public office either for legal expendi¬ 
tures or contributions to political committees or for 
any other purpose, and makes it a misdemeanor for 
any candidate to expend an amount in excess thereof 
(Sec. 781). These limitations are-as follows: 


Candidate for governor. $10,000 

Candidate for any other elective state office, 

other than a judicial office..... 6,000 

Candidate for congress or presidential elector 4,000 

Candidate for state senator. 2,000 

Candidate for assembly... 1,000 

Other candidates .. 500 and 

$3 for each 100 votes cast in such district at the last 
state electign in excess of 5,000 votes. 


Title 3.— Judicial Candidates 

The penal law provides that no candidate for a ju¬ 
dicial office shall make any contribution, nor shall any 
contribution be solicited of him; but he may make 
legal expenditures ” (Sec. 780). 

Title 4.— Solicitations 

The penal law authorizes a request for a contribu¬ 
tion of money by an authorized representative of the 







Corrupt Practices 


153 


political party, organization or association to which 
a candidate for an elective office belongs; but other¬ 
wise it makes it a misdemeanor for any person to 
solicit money or other property from a candidate, or 
to seek to induce a candidate to purchase any ticket, 
card or evidence of admission to any ball, picnic, fair 
or entertainment of any kind (Sec. 779). 

The penal law also makes it a misdemeanor for any 
person to solicit money or other property from a can¬ 
didate for an elective office, as a consideration for a 
newspaper or other publication supporting such candi¬ 
date (Sec. 755). 

Title 5.— Contributions erom Governmental 
Employees 

The civil service law prohibits the solicitation of any 
political assessment, subscription or contribution 
from any officer, agent, clerk or employee under the 
government of the state of New York or any civil sub¬ 
division or part thereof. No person shall enter or re¬ 
main in any office building or room, occupied for gov¬ 
ernmental purposes, or send or direct any letter or 
writing thereto for the purpose of securing a politi¬ 
cal assessment. There are also other specifications. 
The violation of any provision is made a misdemeanor 
(Sec. 26). 

Title 6.—Contributions from Corporations and 
Joint Stock Associations 

The general corporation law contains comprehen¬ 
sive prohibitions against any corporation or joint 
stock association, except a corporation or association 
organized or maintained for political purposes only, 
making any campaign expenditure and it makes it a 


154 The New York Election Laws 

misdemeanor for any officer, director, stockholder, 
attorney or agent of any corporation or joint stock 
association to violate any of such provisions, or to 
participate in, aid, abet or advise or consent to any 
such violation or to solicit or knowingly receive any 
money or property in violation thereof. Provision 
is also made for the attendance of witnesses and the 
production of books and documents upon any investi¬ 
gation, proceeding or trial. (General Corporation 
Law, Sec. 44.) 

AKTICLE III 

STATEMENTS 

Both the penal law and the corrupt practices article 
of the election law deal with statements of campaign 
contributions and expenses. 

Political Committees and Their Statements: The 
corrupt practices article defines political committees 
so as to include any combination of three or more per¬ 
sons co-operating to aid or to promote the success or 
defeat of a political party or principle, or of any 
proposition, or to aid or take part in the election or 
defeat of any candidate (Sec. 540). Every political 
committee must have a treasurer, and must file with 
the secretary of state a statement of his name and 
address, signed by three members of the committee, 
within five days after he is chosen (Sec. 543). Within 
twenty days after election, the treasurer must file a 
statement setting forth all the receipts, expenditures, 
disbursements and liabilities of the committee and of 
others in its behalf (Sec. 546). This statement is a 
summary of the financial business of the committee 
and need not contain the “ detailed accounts ’’ of 
moneys required to be made to him of moneys received 
from him. (Matter of McLennan, 65 Misc. 644, 
affirmed on opinion of Andrews, J., below, 142 App. 
Div. 926, affirmed 204 N. Y. 608.) 


Corrupt Practices 


155 


Candidates^ Statements: The Penal Law requires 
each candidate, under penalty of a misdemeanor, to 
file, within ten days after election, a verified itemized 
statement showing in detail all the moneys contributed 
or expended by him, directly or indirectly, or through 
any other person, in aid of his election. Such state¬ 
ments must give the names of the persons who re¬ 
ceived such moneys, the specific nature of each item 
and the purpose for which it was expended or con¬ 
tributed (Sec. 776.) The corrupt practices act pro¬ 
vides that any person, including a candidate^ who 
makes any expenditure or contribution in connection 
with an election, except to a candidate or political 
committee or duly authorized agent thereof, or except 
for personal expenses, shall file the statement required 
of treasurers of political committees (Sec. 542). The 
statements to be filed by a candidate or other person 
not a treasurer must be in like form as that filed by a 
treasurer, but in statements filed by a candidate there 
shall also be included all contributions made by him 
(Sec. 546). The corrupt practices act provides that 
all statements required by it must be filed with the 
secretary of state, except in those cases where a candi¬ 
date is required to file a statement elsewhere by the 
penal law (Sec. 547). The secretary of state must 
provide suitable blank forms (Sec. 549). The penal 
law provides that candidates for state offices or of any 
division greater than a county, must file their state¬ 
ments with the secretary of state. Candidates for 
town, village and city offices, except in the city of New 
York, file their statements with the town, village or 
city clerk. Candidates for other offices, including all 
offices in the city and county of New York, file their 
statements with the clerk of the county wherein the 
election occurred, unless the county has a commis¬ 
sioner of elections, in which case, candidates file their 
statements with such commissioner (Sec. 776). In 


156 The New York Election Laws 

New York City there is some confusion as to whetlier 
statements affecting candidates for office of a division 
less than the whole city, should tile their statements 
with the county clerk or with the board of elections; 
but the practice is for candidates for county offices 
and for the assembly to tile their statements with the 
county clerk and for other candidates to tile their 
statements with the board of elections. Thereafter, 
the officer with whom the statement is tiled makes a 
certified copy thereof and files it with the secretary of 
state. 

Enforcement of Corrupt Practices Article: Upon 
default in the filing of a statement required by the 
corrupt practices article, provision is made for sum¬ 
mary contempt proceedings (Secs. 550-560). It'is 
questionable, however, if these summary proceedings 
have constitutional support. (Matter of Lance, 55 
Misc. 13.) 

ARTICLE IV 

MISCELLANEOUS PROVISIONS 

The corrupt practices article also contains certain 
other requirements. 

Contributions: Campaign contributions must be 
made under the true name of the contributor (Sec. 
547). 

Payments, Vouchers: All payments required to be 
accounted for, unless the total expense payable to one 
person be not in excess of five dollars, must have a 
receipted voucher stating the particulars of expense, 
and all such vouchers must be preserved for fifteen 
months after the election to which they relate! Sec. 
545). 

Use of Party Funds at Primaries: The law contains 
an express prohibition against the use of party funds 
in connection with primary elections (Sec. 562, as 
amended by Laws of 1913, Chap. 820). 


^art Jfourtl} 

PROCEDURE 
ARTICLE I 

POLICY AS TO JUDICIAL REVIEW 

In reviewing the statutes and decisions relating to 
judicial proceedings, the most important considera¬ 
tion to be borne in mind is that it is the poUcy of the 
state to intrust to bi-partisan boards of officers the 
duty of registering voters, distributing ballots and 
receiving, recording and counting votes at election 
(Constitution, Art. 2, Sec. 6); and that all such mat¬ 
ters have been repeatedly held to be within the exclu¬ 
sive province of such boards and are subject to review 
by the courts only where the legislature has specially 
provided a proceeding for such review. Thus, in 
Hearst v. Woelper, 183 N. Y. 274, the court of appeals 
held that the provisions of the law are to be given the 
fullest effect which they permit; but no construction 
by the courts is justified which permits judicial inter¬ 
ference with, or revision of, elections beyond what is 
plainly found to be authorized by the statute. Simi¬ 
larly, in Metz v. Maddox, 189 N. Y. 460, 468, the court 
of appeals declared that the actual count and determi¬ 
nation of the result of the count of the ballots has 
always been the exclusive province of the board of 
canvassers, although, of course, the officers making 
the false count may be punished for their crime. 
Their false determination is no protection to them. 
Similarly, in Tamney v. Atkins, 209 N. Y. 202, where 
an attempt was made to require the inspectors to re¬ 
count void and protested ballots upon questions suh~ 
mittedyiliQ court held that the relator had no right to 

[ 157 ] 


158 The New Yokk Election Laws 

invoke section 381 of the election law, authorizing a 
writ of mandamus upon the application of any candi¬ 
date voted for at an election, to review the void and 
protested ballots, and held that the privilege of insti¬ 
tuting proceedings for review depends upon legis¬ 
lative enactment, and if the legislature, as a result of 
fixed policy or inadvertent omission, fails to give such 
privilege, the courts have no power to supply the 
omission. 

In Schieftelin v. Komfort, 212 N. Y. 520, the court 
of appeals considered at great length the jurisdiction 
and powers of the judiciary as guardians of the rights 
of the people generally against illegal acts of the ex¬ 
ecutive and legislature; and declared that it had no 
such general paternal jurisdiction {ante, p. 20). 


ARTICLE II 

VARIETIES OF PROCEDURE IN ELECTION CASES 

If the legislature authorizes a court review, the 
judiciary may take jurisdiction to decide test questions 
of election law long in advance of elections and may 
also retain jurisdiction to decide abstract questions 
long after its decision in the particular case has be¬ 
come academic. It may act through any one of the 
courts or through a justice thereof. The form of its 
procedure may be a summary proceeding or it may 
be in the nature of a suit at common law for dam¬ 
ages, or the more elaborate procedure of quo war¬ 
ranto, mandamus, habeas corpus or certiorari. In 
considering these various questions, the time of mak¬ 
ing decisions will first be taken up and then the vari¬ 
ous methods of procedure. For the purpose of con¬ 
venience, however, the tribunal, whether a court or a 
justice, will be uniformly referred to as a court. 


Procedure 


159 


ARTICLE III 

DECISIONS AS AFFECTED BY POINT OF TIME 

Title 1.— Proceedings For Instructions Prior to 
Controversy 

Ordinarily, the courts do not assume jurisdiction to 
decide questions in advance of some action, taken or 
refused, actually involving the rights of persons in¬ 
terested in the question sought to be determined; but, 
if a question relates to the duties of public officers in 
matters of a public nature, the courts will assume juris¬ 
diction in exceptional and extraordinary cases, to de¬ 
cide important questions of election law in advance of 
an actual controversy. (People ex rel. Hotchkiss v. 
Smith, 206 N. Y. 231; State ex rel, Morris v. Wright- 
son, 56 N. J. L. 126.) 

Title 2.— Deciding Questions Not Material to 
Controversy 

The courts have even gone so far in an important 
case as to decide, on a preliminary motion for a bill of 
particulars, questions which could only arise upon the 
trial. (People v. McClellan, 191 N. Y. 341.) In the 
case cited. Gray, Vann and Werner, JJ., dissented, and 
insisted that the ^ ‘ undoubted importance ’ ^ of the case 
‘ ‘ furnishes no reason to assume a function, which, in a 
less important case, it would unhesitatingly declare 
improper to exercise.’’ 

This is consonant with the well settled rule that 
courts will not inquire into the constitutionality of an 
act of the legislature until a concrete case arises in 


160 


The New York Election Laws 


which a decision of such question is unavoidable for 
the determination of the case itself. (Hanrahan v. 
Terminal Commission, 206 N. Y. 494, 504.) 

Title S.— Abstract Questions After Controversy 
Ended 

The general practice of the courts is to refuse to 
decide abstract questions after the question involved 
has become abstract by lapse of time (People ex rel. 
Geer v. Common Council, 82 N. Y. 575; Matter of Man¬ 
ning, 139 N. Y. 446; Matter of Norton, 158 N. Y. 130; 
Croker v. Sturgis, 175 N. Y. 158, 163); but the courts 
will ordinarily decide a question relating to the elec¬ 
tion law, even after the election to which it relates has 
been held. (Matter of Gage, 141 N. Y. 112; Matter of 
Madden, 148 N. Y. 136, 139; Matter of Fairchild, 151 
N. Y. 359, 361; Matter of Social Democratic Party, 182 
N. Y. 442; People ex rel. Borgia v. Doe, 109 App. Div. 
670, 671; Matter of Titus, 117 App. Div. 621, affirmed 
188 N. Y. 585; Schielfelin v. Britt, 150 App. Div. 568; 
Matter of King, 155 App. Div. 720.) 

Title 4. — Prompt Determinations 

It is the duty of courts and judges entertaining pro¬ 
ceedings under the election law to speedily decide the 
questions presented to them. (Matter of Hennessy, 164 
N. Y. 393.) 


Procedure 


16j 


ARTICLE IV 
SUMMARY PROCEEDINGS 
Title 1.— In General 

The election law provides for a variety of summary 
proceedings. These are founded on separate pro¬ 
visions of the statute, which vary in their terms as to 
the particular court or justice to whom the application 
shall be made, the party entitled to make the same, the 
notice that must be given, how such notice must be 
served and in many other particulars. In considering 
them, the substance will be given, and the reader can 
readily secure such additional detail as he may require 
by referring to the particular section cited in each in¬ 
stance. It should be borne in mind, however, that these 
various summary proceedings are statutory, dependent 
upon special provision of law, and where the legisla¬ 
ture decrees that jurisdiction shall be obtained only in 
a certain way, that way must be followed to the ex¬ 
clusion of all others, and unless it is, the service made 
is inetfectual for any purpose. (Eisenhofer v. New 
Yorker Publishing Co., 91 App. Div. 94.) 

The courts have recognized the confusion created by 
the number of varying provisions and hold that the 
mere fact that the mmving party refers to the wrong 
section is immaterial and a case will be disposed of in 
accordance with the facts as they appear. (Matter of 
Haugb, 141 App. Div. 26.) 

Title 2.— Enrollment 

Improper Denial of Enrollment: Where a board im¬ 
properly refuses^ to enroll a voter, he is entitled to a 
writ of mandamus. (Matter of Guess, 16 Misc. 306.) 

6 


162 


The New Yokk Election Laws 


Review of Enrollment: The law provides for sum¬ 
mary proceedings to review enrollment both in cases 
of false statements, death or removal from the election 
district (Sec. 23) and cases where claim is made that 
an enrolled voter is not in sympathy with the principles 
of the party with which he is enrolled (Sec. 24). The 
right to institute either proceeding is given to any en¬ 
rolled voter of the same political party residing in4he 
assembly district in which the election district, whereat 
the voter proceeded against is enrolled, is located. In 
the first class of cases, the application is made directly 
to the court; in the latter, to the chairman of the 
county general committee, who hears the matter and, 
if it appears by sufficient evidence that the person is 
not in sympathy with the principles of the party, files 
a certificate with the board of elections, setting forth 
the reasons why the voter’s name should be stricken 
from the enrollment book; and it thereupon becomes 
the duty of the board of elections to make application 
to the courts. In either class of cases the court, after 
notice, makes such final order as the facts warrant. 

Evidence: The provisions requiring sufficient evi¬ 
dence ” in cases of alleged death or removal from the 
election district must be strictly complied with. (Mat¬ 
ter of Titus, 117 App. Div. 621; Matter of O’Brien, 117 
App. Div. 628; Matter of McGuire, 117 App. Div. 637; 
all affirmed 188 N. Y. 585; Matter of Heineman, 124 
App. Div. 918.) 

Notice: An order to show cause why a voter’s name 
should not be stricken from the enrollment book must 
be returnable on a day at least ten days before a pri¬ 
mary election and a copy thereof served on the person 
proceeded against either personally or by mail and on 
the board of elections at least forty-eight hours be- 


Pkocedure 


163 


fore the return thereof.’’ Any number of hours less 
than forty-eight hours is insufficient. (People ex rel. 
Clancy v. Bingham, 123 App. Div. 226; Matter of Strik¬ 
ing 539 Names from the Enrollment Books of Ihe 29th 
Assembly District, Law Journal, September 13, 1909.) 

Error: Where application is made to strike a name 
from the enrollment of a given year, it is fatal to refer 
to such enrollment as the enrollment of the year pre¬ 
vious, although made in that year. (Matter of Watson, 
193 N. Y. 612.) 


Title 3. — Membership of Party Committees 

Elections: The election law provides that the elec¬ 
tion of members to any party committee may be re¬ 
viewed by summary proceedings upon the petition of 
any person qualified fo vote at the primary election of 
the party which such committee represents (Sec. 41). 

Removals: The law also provides for summary pro¬ 
ceedings to review the action of any cominittee in re¬ 
moving one of its members. Such application is by 
petition of the person so removed (Sec. 42). 

Title 4.— Designations and Primaries 

Review of Designations: The election law author¬ 
izes the filing of objections to any designation within 
three days after the date of filing, and provides that 
the questions raised by such objections shall be heard 
and determined as prescribed in relation to questions 
with reference to names or emblems on a certificate of 
nomination (Sec. 55-a, see post, p. 166). The effect of 
this statute is to overrule the decision in Matter of 
Salter (76 Misc. 33). 

The objector may be barred for laches. (Matter of 
Rathborne, 164 App. Div. 916.) 


164 


The New York Election Laws 


Consolidation: Similar proceedings may be consoli¬ 
dated (Sec. 55-a). 

Correction of Designations: The Supreme Court is 
without power to make an order, nunc pro tunc, au¬ 
thorizing an amended designating petition to be sub¬ 
stituted for a faulty petition after the time in which to 
file designations has expired. (Matter of King, 155 
App. Div. 720.) 

Review of Primaries: Any action or neglect of the 
officers or members of a political convention or com¬ 
mittee, or of any inspector of primary election, or of 
any public officer or board with regard to the right of 
any person to participate in a primary election, con¬ 
vention or committee, or to enroll with any party, or 
with regard to any right given to or duty prescribed 
for, any voter, political committee, political conven¬ 
tion, officer or board, is re viewable by summary pro¬ 
ceedings upon the petition of any person aggrieved 
thereby or upon petition presented by the chairman of 
any political committee. The court should consider^ 
but need not be controlled by, any action or determina¬ 
tion of the regularly constituted party authorities upon 
the questions arising in reference thereto, and shall 
make such decision and order as, under all the facts and 
circumstances of the case, justice may require. The 
action of any custodian of primary records in canvass¬ 
ing and certifying the result of any primary election, 
or of the secretary of state in preparing and certify¬ 
ing the list of delegates to any convention or members 
of a state committee may be reviewed in like manner. 
Tlie court may subpoena or examine witnesses or in its 
discretion hear and determine the case on affidavits. 
In case the court finds and determines that both par¬ 
ties to a controversy have been guilty of frauds or that 



Procedure 


165 


a primary has been so permeated by fraud as to render 
it impossible to determine the true result thereof, it 
may direct the holding of a new primary (Sec. 56). 

Prima Facie Case: In attempting to review a pri¬ 
mary election, the moving party must make out a case, 
and even where gross frauds and irregularities are 
charged and feebly and unconvincingly denied, no case 
is presented if it is reasonably clear that the acts com¬ 
plained of could not have affected the result and at 
most served only to swell the apparent majority of the 
successful candidate. (Matter of Coughlin, 198 N. Y. 
613, affirming 137 App. Div. 283, on opinion of Scott, J., 
below.) 

Relief Granted: In the case of another primar3^ 
election, one held at Watervliet in 1905, where the 
brother of one of the candidates acted as chairman of 
the board, kept the boxes on the floor, permitted ballot 
stuffing and, after his brother's votes had been counted, 
apparently welcomed a brick which arrived through 
the window and w^as succeeded by darkness, thereby 
ending the counting of the opponent’s votes, the court 
ordered a new primary election. (McLaughlin v. Con¬ 
nors, 185 N. Y. 545.) In other cases, the courts have 
gone even further and after setting aside a certificate 
of election already issued have summarily determined 
that another candidate is entitled thereto and directed 
the issuance of a certificate to him. (Rabbitt v. 
Grarand, 89 App. Div. 119; Walsh v. Church, 115 App. 
Div. 82.) In a more recent case, the court directed a 
recanvass. (Matter of Ward, 78 Misc. 15.) 

Scope of Review: Under the law as it read prior to 
1911, the jurisdiction of the courts was held to be lim¬ 
ited, relating solely to matters within the jurisdiction 
of the board whose action was being reviewed. (Mat- 


166 The New York Election Laws 

ter of Hines, 141 App. Div. 569.) For instance, the 
courts held they could not review the action of a board 
which declined to add together the votes for a candi¬ 
date apparently voted for under two different names. 
(People ex rel. Calihan v. Hunt, 75 App. Div. 33; Mat¬ 
ter of Sweeney, 158 App. Div. 496, reversed, on a ques¬ 
tion of procedure, 209 N. Y. 567.) The legislature of 
1911, however, revised and liberalized the provisions 
on this subject (Laws of 1911, Chap. 891) and the 
decisions cited are probably not conclusive. (Matter 
of Zimmer, 77 Misc. 336, Pooley, J.) 

Injunction: A temporary injunction granted in 

connection with summary election proceedings is ordi¬ 
narily unauthorized and void {post, p. 190). 

Title 5.— Certificates of Nomination. Names and 
Emblems 

Any question arising with reference to any emblem 
or to any name designated in any certificate of nomina¬ 
tion or with reference to the construction, sufficiency, 
validity or legality of any certificate may be deter¬ 
mined by the court upon the application of any 
citizen (Sec. 125). Any questions raised by objec¬ 
tions filed to a designation (Sec. 55a) or to a cer¬ 
tificate of nomination may be heard and determined 
in the same manner (Sec. 134). If the certificates 
of nomination of two or more different parties or 
independent bodies designate the same or substan¬ 
tially the same emblem or party name, the court must 
decide which party or independent body is entitled to 
the use thereof, being governed as far as may be in its 
decision by priority of designation in the case of the 
emblem, and of use in the case of the party name. If 


Procedure 


167 


there be a division within a party, and two or more 
factions claim the same or substantially the same 
emblem or name, the court must decide between such 
conflicting claims, giving preference of emblem and 
name to the convention or primary, or committee 
thereof, recognized by the regularly constituted party 
authorities (Sec. 125). 

Notice: Notice must be given to the candidate 
affected. (Sec. 134; Matter of Sweeney, 209 N. Y. 
507.) 

Scope of Proceeding: This proceeding cannot be in¬ 
voked to determine the qualifications of a candidate. 
(Matter of Independent Nominations, 186 N. Y. 266, 
279.) 

Consolidation: Similar proceedings may be consoli¬ 
dated (Sec. 125, as amended by Laws of 1914, 
Chap. 244). 

Reform in Procedure: The present statute was en¬ 
acted in 1911 and marked a distinct reform in pro¬ 
cedure. (Laws of 1911, Chap. 649.) Under the for¬ 
mer practice, application had to be made, in the first 
instance, to a board of elections, which had but a brief 
time to decide the questions before it. The board in 
New York City was frequently compelled to sit all 
night and day and, even then, it frequently decided 
important questions, on partisan lines, by agreeing to 
disagree, voting two and two, and throwing a mass of 
undigested litigation into the courts at the eleventh 
hour and barely permitting a decision by any appellate 
court in sufficient time to allow the printing of the 
ballots. The law of 1911 eliminated this preliminary 
hearing by boards of elections and provided for orderly 
proceedings in the courts which afford reasonable time 
for an appeal and the printing of the ballots. 


168 


The New York Electio^t Laws 


Final Order: In all proceedings brnuglit under sec¬ 
tion 125, the law now provides that the final order at 
special term must be made on or before the twelfth 
day (Thursday) or, in ease of a certificate of nomi¬ 
nation of a town or village officer, the seventh day 
(Tuesday) before election (Sec. 125, as amended by 
Laws of 1913, Chap. 820). The provisions of law prior 
to the amendment of 1913, requiring the final order to 
be made fifteen days before election (Monday) were 
held to be not mandatory. (Matter of Emmet, 150 
N. Y. 538; Matter of Hennessy, 164 N. Y. 393; Matter 
of Herman, 108 App, Div. 335.) Accordingly, an appli¬ 
cation was held to be timely where the last day of 
registration fell on Saturday, the seventeenth day be¬ 
fore election, and an order to show cause was secured 
on Monday and made returnable on Wednesday; other¬ 
wise the object of the statute in respect to certificates 
and objections would be frustrated. (Matter of Stod¬ 
dard, 158 App. Div. 525.) Where, however, the appli¬ 
cant has ample time to comply with the terms of the 
statute, his failure to do so must be fatal to his appli¬ 
cation. (People ex rel. Tuers v. Dooling, 141 App. 
Div. 918, affirming 69 Misc. 391, on opinion of Staple- 
ton, J., below.) 

Title 6.— Pegistratiok 

The election law provides for summary proceedings 
to be instituted not later than twelve days before elec¬ 
tion to direct inspectors of any election district to 
convene as a board of registration on the second Sat¬ 
urday before election, to place upon the register the 
name of any person entitled to have his name placed 


Pkoceduee 


169 


thereon omitted through the fault, error or negligence 
of the election officers, or to strike from the* register 
the name of any person who will not he qualified to 
vote in such election district at the election for which 
registration is made. The latter application may be 
made by any elector of the town or city in which the 
election district is located (Sec. 153). 

An application to add a voter’s name cannot be made 
after the last day of registration on the ground that he 
has registered in the wrong district. This is not 

through the fault, error or negligence ” of the elec¬ 
tion officers,” that is, of the right district, but is 
through his own negligence, concurred in by the in¬ 
spectors of the wrong district. (Matter of Hart, 25 
Misc. 93, Gaynor, J.) 

Where an application is made to strike names from 
the register, an affidavit by the superintendent of elec¬ 
tions, or by any deputy duly deputed for that purpose, 
stating certain facts specified in the law, is presump¬ 
tive evidence against the right of the voter to register 
from such premises (Sec. 153; Matter of Morgan, 114 
App, Div. 45); but no application to strike a name from 
a register will be granted in a case of doubt, nor in one 
resting in some uncertainty or dependent upon infer¬ 
ences of a debatable character, but only in a case in 
which the facts show affirmatively that the intending 
voter is not and cannot become qualified. If there is 
a dispute about the facts or ground for differing infer¬ 
ences the court should not interfere, but leave the voter 
to swear in his vote at his peril, taking upon himself 
the risk of his persistence. (Matter of Goodman, 146 
N. Y. 284; Matter of Jacobs, 45 Misc. 113.) 


170 


The New York Election Laws 


Title 7.— Official Ballots 

Upon affidavit, presented by any voter, that an error 
or omission has occurred in the publication of the 
names or description of the candidates nominated for 
office, or in the printing of sample or official ballots, 
the court may make an order requiring the board 
charged with the duty in respect to which such error 
or omission occurs to correct such error, or show cause 
why such error should not be corrected. Such board, 
upon its own motion, must correct, without delay, any 
patent error in the ballots which it may discover, or 
which shall be brought to its attention, and which can 
be corrected without interfering with the timely dis- 
tnbution of the ballots to the inspectors for use at such 
election (Sec. 344). 

Title 8.— Corrupt Practices Act 

If any person or committee fails to file a statement 
or account required by the corrupt practices act or 
files a statement which does not conform to the re¬ 
quirements thereof in respect -to its truth, sufficiency 
in detail, or otherwise, or if any person or committee 
has failed to comply with any other of the require¬ 
ments of the act, the court by order in proceedings for 
contempt may compel such person or committee to file 
a sufficient statement or account, or otherwise comply 
with the provisions of the act. The applicant for such 
an order must present a written petition (Sec. 550; 
See Matter of Lance, 55 Misc. 13). The application 
may be made by the attorney-general, district attorney, 
a candidate, or by any five voters who voted at the 
election (Sec. 551). 



Procedure 


171 


ARTICLE V 
MANDAMUS 
Title 1.— Enrollment 

Mandamus is a proper remedy to compel a board 
to enroll a duly qualified voter. (Matter of Guess, 16 
Misc. 306.) 


Title 2.—Acceptance of Vote 

Mandamus is a proper remedy to compel inspectors 
of election to allow a duly qualified and registered 
elector to vote and, in fact, is regularly issued for that 
purpose. (People ex rel. Borgia v. Doe, 109 App. Div. 
670.) The voter, however, must show that he is quali¬ 
fied (People ex rel. Sherwood v. Board of Canvass¬ 
ers, 129 N. Y. 360.) 

Title 3.— Recount and Preservation of Ballots 

• 

Disposition of Ballots: When all the ballots of any 
one kind have been canvassed, all of the ballots of that 
kind as to the counting of which any objection was 
taken, or which are wholly void or which are wholly 
blank, must be carefully and securely placed in a 
separate sealed package, known as the package of 
protested, void and wholly blank ballots.” These are 
the ballots on which the inspectors have ruled and 
recorded their rulings by appropriate written record 
on the ballots themselves. The other ballots must be 
tied together, labeled and returned to the ballot box 
from which they were taken (Sec. 369). After all the 
tally sheets and returns are completed and all the 


172 


The New York Election Laws 


stubs and ballots have been placed in the appropriate 
boxes and packages, each box must be securely locked 
and sealed, and deposited with the officer or board 
furnishing it, together with the separate sealed jjack^ 
age of unused official ballots. These boxes and pack¬ 
ages must be preserved inviolate for six months after 
election, except that they may be opened and their 
contents examined upon order of court. Unless so 
ordered to be preserved, they shall be opened and their 
contents destroyed after six months (Sec. 374). The 
packages of protested, void, and wholly blank ballots 
must also be retained inviolate in the office in which 
they are filed, subject to the order and examination 
of court, and may be destroyed at the end of six months 
from the canvass, unless otherwise ordered by court 
(Secs. 374, 437). Under an amendment to the law 
passed by the legislature of 1913, any candidate is 
entitled, as of right an examination in person or 
by authorized agents of any ballots upon which his 
name lawfully appeared, as that of a candidate; but 
the court is to prescribe such conditions as to notice 
to other candidates or otherwise as it shall deem neces¬ 
sary and proper (Sec. 374, as amended by laws of 
1913, Chaj). 821). This authority is limited to an 
examination of the ballots. (People ex rel. Brown v. 
Preisch, Law Journal, June 28,1915, Court of Appeals.) 

Ballots in Boxes: The election law does not author¬ 
ize a writ of mandamus to recanvass or recount the 
ballots in the boxes. (People ex rel. Brink v. Way, 




Proceduke 


173 


179 N. Y. 174; Hearst v, Woelper, 183 N. Y. 274; 
People ex rel. March v. Beam, 188 N. Y. 266; People 
ex rel. White v. Supervisors, 192 N. Y. 539; People 
ex rel. Brown v. Freisch,^wpra.) A mandamus, how¬ 
ever, is available to compel the inspectors to take out 
of the boxes protested, void and wholly blank ballots 
improperly placed therein and to place them in the 
sealed packages (People ex rel. March v. Beam, supra; 
People ex rel. Maxim v. Ward, 62 App. Div. 531); but 
the court will not grant this relief where the inspectors 
have failed to make any mark of identification on the 
ballots on election night and are aided only by a recol¬ 
lection of a situation as it existed on election night. 
(People ex rel. Brown v. Freisch, supra, reversing 153 
Suppl, 277; People ex rel. Cantor v. Seid, N. Y. L. J., 
Feb. 13, 1915, Cohalan, J.) The better practice, in 
cases where the removal of ballots is authorized, is 
first, to grant a mandamus for an examination of the 
ballots in the boxes and then, if it appears by such in¬ 
spection that ballots have, in fact, been locked up in 
the boxes which should have been placed in the sealed 
packages, to grant a second mandamus directing the 
removal thereof to the sealed packages. (People ex rel. 
Cantor v. Canvassers, 165 App. Div. 142.) But no al¬ 
teration or erasure of any record made upon the bal¬ 
lots on election night is permissible. (People ex rel. 
Brown v. Freisch, 153 Supply 277.) It has also been 
held that if the inspectors have deliberately left the 
original count for an office entirely undetermined, to 


174 


The New York Election Laws 


be determined by the courts, and have placed the bal¬ 
lots in the boxes, mandamus lies to compel them to 
reopen the boxes and discharge the duties imposed on 
them by law. In such a case there is ‘ ‘ no count, can¬ 
vass or declared result.” (People ex rel. Sturtevaut 
V. Armstrong, 116 App. Div. 103; following People 
ex rel. Smith v. Schiellein, 95 N. Y. 124.) 

Void and Protested Ballots for Candidates: As to 
the void and protested ballots, the law expressly au¬ 
thorizes a writ of mandamus upon the application of 
any candidate within twenty days after election to re¬ 
view the action of the inspectors in counting ballots 
which were protested and in rejecting other ballots as 
void. The election boards are continued in office for 
the purpose of such proceedings. (Sec. 381; People 
ex rel. White v. Aldermen, 157 N. Y. 431.) 

Mandamus also lies to compel the inspectors to 
count protested ballots, which they omitted to count. 
(People ex rel. McLaughlin v. Ammenwerth, 197 N. Y. 
340.) 

Mandamus also lies to compel the inspectors to 
make a true return of the votes as actually cast and 
counted by them, as where they transposed figures by 
mistake (People ex rel. Henness v. Douglas, 142 App. 
Div. 224), or omitted to give a candidate the votes 
to which he was shown to be entitled by the unques¬ 
tioned tally sheet. (Matter of Stewart, 155 N. Y. 545.) 

Void and Protested Ballots for Questions Submitted: 
Mandamus does not lie in relation to propositions 
submitted. (Tamney v. Atkins, 209 N. Y. 202; People 
ex rel. May v. Strang,‘137 App. Div. 848.) There is, 
therefore, no remedy for the review of void and pro¬ 
tested ballots on questions submitted, it being within 
the power of the legislature to make the deterniina- 



Procedure 


175 


tion of the inspectors of election ‘ ‘ final and conclu¬ 
sive {ante, p. 157; People ex rel. May v, Strang, 
supra). 

Procedure: In order to secure a writ of mandamus, 
the relator must comply with the appropriate pro¬ 
visions of the code of civil procedure, giving the requi¬ 
site number of days’ notice. He cannot base his ap¬ 
plication on a petition verified wholly on information 
and belief. (Matter of Brough, Seabury, J., L. J., 
December 2, 1910; People ex rel. Watkins v. Board of 
Canvassers, 25 Misc. 444; see also People ex rel. Perry 
V. Board of Canvassers, 88 App. Div. 185.) A peti¬ 
tion for mandamus should refer to particular election 
districts and not rest on a general allegation referring 
to all the election districts in a city. (Matter of Ord- 
way, 118 App. Div. 386.) 

Referee: It is questionable procedure to appoint a 
referee to supervise the recount of void and protested 
ballots. (Matter of Tompkins, 23 App. Div. 224.) 

Title 4.— Canvass 

Mandamus may issue to require a county or state 
board of canvassers to correct errors or to perform 
its duty in the manner prescribed by law (Secs. 433, 
435). Where the board declines, even without any 
authority, to give a certificate to a candidate who is 
disqualified, but whose disqualification can only be 
determined by the legislature, the courts will not grant 
a mandamus to compel it to give such a certificate, 
because that, in effect, would be compelling it to do 
a w^rong. (People ex rel. Sherwood v. Board of Can¬ 
vassers, 129 N. Y. 360.) 


176 


The New York Election Laws 


Title 5.— Title 

Mandamus does not lie to determine title to public 
office {post, p. 185). 

Title 6.— By Whom Granted 

Unless a statute expressly so provides, a judge at 
chambers has no jurisdiction to issue a mandamus. 
(Code Civ. Pro., Secs. 2068-9; People ex rel. Lower 
V, Donovan, 135 N. Y. 76.) 


ARTICLE VI 
TAXPAYERS’ ACTIONS 

Neither section 1925 of the Code nor section 51 of 
the general municipal law authorizes a taxpayer’s 
action against a board of elections (Matter of Rey¬ 
nolds, 202 N. Y. 430; County of Albany v. Hooker, 204 
N. Y. 13; Schieffelin v. Komfort, 212 N. Y. 520); and 
the courts deny the right of a citizen and taxpayer to 
attempt to review an act of the legislature simply 
because he is one of many citizens and taxpayers. He 
must be atfected in his private rights as distinct from 
those of other citizens and taxpayers. (Demarest v, 
Wickham, 63 N. Y. 320; Schieffelin v. Komfort, supra.) 
The leading case of Schieffelin v. Komfort is fully 
reviewed in tliis book at page 20. 




Peocedufe 


177 


ARTICLE VII 
CEETIORARI TO REVIEW 

The writ of certiorari to review the determination 
of a body or officer (Code Civ. Pro., Sec. 2120) cannot 
be invoked to review the acts and'conduct of election 
officers. They are simply ministerial officers. (People 
ex rel. Van Sickle v. Austin, 20 App. Div. 1; People 
ex rel. Brooks v. Bush, 22 App. Div. 363.) 

ARTICLE VIII 

HABEAS CORPUS AND CERTIORARI TO INQUIRE 
INTO CAUSE OF DETENTION 

Title 1.— Pbocedure 

The writ of habeas corpus and the writ of cer¬ 
tiorari to inquire into the cause of detention (Code 
Civ. Pro., Chap. 16, Title 2, Article Third, Secs, 2015- 
2066) are writs to be invoked by a person imprisoned 
or restrained in his liberty, within the state, for any 
cause, or upon any pretence, for the purpose of in¬ 
quiring into the cause of the imprisonment or restraint 
and of delivering him therefrom (Sec. 2015); except 
where he has been committed or is detained by virtue 
of a final judgment, decree or order of any competent 
tribunal, or by virtue of an execution or other process 
issued thereon (Sec. 2010; People ex rel. Hubert v. 
Kaiser, 206 N. Y. 46). The court, upon application, 
must issue a writ of habeas corpus (Sec. 2026) and, 
immediately after the return of the writ, must exam¬ 
ine into the facts alleged in the return and into the 


178 


The New York Election Laws 


cause of the imprisonment or restraint of the prisoner, 
and must make its final order to discharge him there¬ 
from, if no lawful cause for imprisonment or restraint 
or for the continuance thereof is shown, whether the 
same was upon a commitment for an actual or sup¬ 
posed criminal matter or for some other cause (Sec. 
2031). If, however, it appear that the prisoner is 
properly detained, the court must make a final order 
to remand him (Sec. 2032). Even if a commitment is 
irregular, the court may remand the defendant or dis¬ 
charge him upon his giving bail, but the irregnilarity 
in question must be one of those practically imma¬ 
terial errors in the description or nomenclature of the 
crime or in the form of the warrant, which might well 
be overlooked when the evidence disclosed the probable 
commission by the accused of a crime substantially 
and fairly described in the warrant.’’ (People ex reL 
Howie V. Warden, 207 N. Y. 354.) 

In reviewing the action of the minor courts, particu¬ 
larly in election cases, it has become the practice to 
secure, simultaneously, a writ of certiorari directed 
to the court to return the information or evidence, and 
a writ of habeas corpus requiring the production of 
the relator. This practice is not founded on statutory 
authority, but is acquiesced in on the ground of con¬ 
venience. (People ex rel. Smith v. Van de 'Carr, 86 
App. Div. 9, 12; appeal dismissed, 183 N. Y. 569; 
People ex rel. Clark v. Keeper, 176 N. Y. 465, 470.) 

Proceedings before an inferior criminal court may 
be challenged, upon habeas corpus and certiorari, be¬ 
cause of an insufficient information, or because of 
insufficient depositions, or because of an insufficient 
commitment. When a prisoner is held without au¬ 
thority of law, the proper tribunal will look into the 



Procedure 


179 


recordy so far as to ascertain tliis fact; and if it be 
found to be so, will discharge the prisoner. (People 
ex rel. Tweed v. Liscomb, 60 N. Y. 559, 572; People 
ex rel. Clark v. Keeper, supra.) The court hearing 
the application will be g'overned by the record, and 
if it is apparent upon the face of it that the court 
lacked jurisdiction as a matter of law, the petitioner 
will be discharged. (2 Spelling on Injunctions and 
Extraordinary Remedies, 1040, Sec. 1203.) 

Title 2.— Information or Depositions 

Informations: If an insufficient information is laid 
before a magistrate, he has no jurisdiction to issue a 
warrant or a subpoena. (People ex rel. Livingston v. 
Wyatt, 186 N. Y. 383, 392; People ex rel. Brown v. 
Tighe, 146 App. Div. 491.) 

There is some confusion in the authorities as to 
what an information really is, for the term is fre¬ 
quently used to designate the deposition or affidavit 
upon which a criminal warrant is issued. The stat¬ 
ute itself is not free from doubt upon the subject. An 
affidavit taken before a magistrate may be full enough 
to perform the function both of an information and a 
deposition. This is true when it sets forth facts suffi¬ 
cient to authorize a warrant without further evidence, 
but when more proof is required and it is necessary 
to subpoena witnesses and take their depositions, an 
information is essential. Its office is that of a com¬ 
plaint, as the revised statutes called it. Depositions 
are the authority for the warrant, as the magistrate 
must be satisfied ‘ therefrom,^ which refers to deposi¬ 
tions only. Something less is required in an informa¬ 
tion than in a deposition, as otherwise there would be 


180 


The New Yokk Election Laws 


no occasion for the latter. The deposition must set 
forth facts tending to show that a crime has been com¬ 
mitted and that there is reasonable ground to believe 
that the defendant committed it. While the informa¬ 
tion need not go so far as the deposition, still it cannot 
rest Avholly on information and belief, but facts enough 
must be stated to show that the complainant is acting 
in good faith and that he has reasonable grounds to 
believe that a crime has been committed by some per¬ 
son named or described. From all the analogies of 
the law, both civil and criminal, the information is 
intended to be made upon oath. While the statute 
does not expressly require it, we think it is necessarily 
implied, for otherwise an unfounded accusation could 
be set on foot and an investigation instituted upon un¬ 
supported assertion without any proof whatever.” 
(People ex rel. Livingston v. Wyatt, supra.) An in¬ 
formation which makes a general statement that the 
prisoner has been guilty of the violation of some gen¬ 
eral statute, such as the liquor tax law, is insufficient 
to give jurisdiction. (People ex reh Sandman v. Tut- 
hill, 79 App. Div. 24; People v. Hiley, 33 Misc, 168.) 
An information is also void which charges a crime 
against John Doe and Eichard Eoe in a case where 
the prosecutor has particular individuals in mind. 
(People ex rel, Sampson v. Dunning, 113 App. 
Div. 35.) 

Depositions: The supreme court, on habeas corpus 
and certiorari, should discharge a prisoner, where it 
appears, after an arrest upon a magistrate’s warrant, 
that the depositions upon which the magistrate issued 
the warrant furnished no legal evidence of the com¬ 
mission of a crime by the relator. (People ex rel. Per¬ 
kins V. Moss, 187 N. Y. 412; People ex rel. McAuley 




Proceduke 


181 


V. Wahle, 124 App. Div. 762.) the magistrate 

issued the warrant of arrest without sufficient evi¬ 
dence in the particular case, the process is a nullity. 
The question always must be whether the magistrate 
acquired jurisdiction to cause an arrest of the person, 
and the court, upon a habeas corpus proceeding, will 
look back of his warrant and see if the facts stated in 
the depositions of the prosecutor and his witnesses 
support his warrant. If they do not furnish reason¬ 
able and just ground for a conclusion that the crime 
charged had been committed and that the defendant 
committed it, then jurisdiction was lacking to hold the 
prisoner in custody for any time.’’ (People ex rel, 
Perkins v. Moss, supra; Hewitt v. Newberger, 141 
N. Y. 538; Swart v. Eickard, 74 Hun, 339; Tanzer v. 
Breen, 139 App. Div. 10.) 

Where the deposition is made upon information 
and belief, or supposition and belief, a warrant issued 
thereunder is void. (Blodgett v. Eace, 18 Hun, 132, 
approved Swart v. Eickard, 148 N. Y. at 269; People 
ex rel. Kingsley v. Pratt, 22 Hun, 300, 302; People v. 
Cramer, 22 App. Div. 189; McKelvey v. Marsh, 63 
App. Div. 396; McCarg v. Burr, 106 App. Div. 275, 
279; Tanzer v. Breen, supra; Matter of Lorman, 
N. Y. L. J., May 13, 1910, Whitney, J.) 

An affidavit sworn to before a notary public is en¬ 
tirely insufficient to authorize a warrant.” (People 
V. Nowak, 5 Supp. 239.) 

Title 3.— Commitment 

Upon return of a warrant, if it appear from an ex¬ 
amination that a crime has been committed and that 
there is sufficient cause to believe the defendant 


182 


The New Yokk Election Laws 


thereof, the magistrate must make an order that 
the defendant be held to answer the same (Code Crim. 
Pro., S*ec. 208). The magistrate, at the time he makes 
the foregoing order, must also make an order of com¬ 
mitment. Prom the earliest times, this process was 
required to contain a statement of the nature of the 
crime with which the prisoner was charged; if it does 
not, it is void. (People ex rel. Allen v. Hagan, 170 
N. Y. 46.) 

The junsdiction of an inferior criminal court to 
issue a commitment may be raised upon habeas corpus 
and certiorari. Where the insufficiency of the process 
appears upon the face thereof, this may be done by 
demurrer thereto. Where the return sets forth a com¬ 
mitment showing apparent authority in the inferior 
criminal court, it must be done ^^by traversing the 
return and by presenting the information or evidence 
on which the magistrate acted.’’ (People ex rel. Far¬ 
ley V. Crane, 94 App. Div. 397, 402; People ex reL 
Willett V. Quinn, 150 App. Div. 813; People ex rel. 
Clark V. Keeper, 176 N. Y. 465.) 

The question which the court determines is whether 
there is any evidence to justify the magistrate in mak¬ 
ing his determination. (People ex rel. Bungart v. 
Wells, 57 App. Div. 140, 151; Matter of Henry, 13 
Misc. 734.) In People ex rel. Farley v. Crane, the 
court said, ^ ‘ The jurisdiction of a magistrate to issue 
a commitment is properly presented, on habeas corpus 
or on a writ of certiorari to inquire into the cause of 
detention, by traversing the return and by presenting 
the information or evidence upon which the magistrate 
acted; and if it appears thereby that there is no evi¬ 
dence that the crime charged has been committed by 
the relator, or that it has been committed, and there is 
no evidence of reasonable ground for believing that it 


Procedure 


183 


has been committed by him, be is entitled to his liberty. ^ ’ 
In People ex rel. Bungart v. Wells, supra, the magis¬ 
trate made a commitment in an arson case. The re¬ 
lator secured writs of habeas corpus and certiorari. 
The sheriff returned that be bad custody by virtue of 
the commitment; but be did not return any evidence. 
The relator traversed the return by denying that it ap¬ 
peared by the evidence that the crime of arson bad been 
committed. The court below sustained a demurrer to 
this traverse. The appellate division held that this was 
• error, reversed the order and discharged the prisoner. 
In that connection, the court decided that the traverse 
was sufficient in form and that a final commitment may 
be reviewed on habeas corpus in order to determine 
whether there was any evidence to sustain it. On the 
latter point, it said, If the mere commitment were 
conclusive, then the writ would he largely shorn of its 
strength. The mere return of the magistrate would 
make his- ipse dixit final,* no matter how absurd or 
wicked or wanton his determination, when tested by the 
facts before him, might be. To hold this, would be to 
travel backward into another century and to undo the 
principles of the law and the statutes.’’ It, therefore, 
follows that, even if the prisoner secures the writ after 
commitment, the supreme court should discharge him 
if the record shows that the information or depositions 
were insufficient. This must be so, because the ques¬ 
tion always must he whether the magistrate acquired 
jurisdiction to cause an arrest of the person.” If he 
did not, the warrant and all proceedings under it 
are absolutely void.” (People ex rel. Perkins v. Moss, 
supra.) 

V/aiver of Irregularities: A defendant does not 
waive the right to sue out habeas corpus by appearing, 
under arrest (Warner v. Perry, 14 Hun, 337); nor by 


184 


The New York Election Laws 


waiving* examination (People ex rel. Perkins v. Moss, 
187 N. Y. 410, 418). 

Improper Commitment Where Magistrate Has Au¬ 
thority to Convict: In certain special cases in which 
the powers-of the magistrate assimilate with those of 
a court of record, in that they may not only commit 
for trial elsewhere, hut may actually eonvict, it may 
be that after conviction the evidence may not be e^^am- 
ined for the purpose of seeing whether there is any 
evidence to authorize the conviction (People ex rel. 
Farley v. Crane, 94 App. Div. 397, 402) although, in 
that case, the court added, but the question is not 
presented for decision now. ’ ’ The weight of authority, 
however, supports the proposition that upon a com¬ 
mitment in the nature of a final judgment ’ ^ neither wudt 
acts as a writ of review which will permit the exam¬ 
ination of the evidence to any extent whatsoever. (Peo¬ 
ple ex rel. Reynolds v. Warden, 44 Misc. 149, 151; Peo¬ 
ple ex rel. Kuhn v. House of Mercy, 133 N. Y. 207; 
People ex rel. St. Clair v. Davis, 143 App. Div. 579. See, 
however. People ex rel. Van Riper v. Catholic Pro¬ 
tectory, 106 N. Y. 604; People ex rel. Danziger v. 
House of Mercy, 128 N. Y. 180, where the court went 
fully into the question as to whether there was any evi¬ 
dence before the magistrate.) 


ARTICLE IX 

ACTIONS TO TRY TITLE TO OFFICE 
Title 1.— Equity 

A court of equity has no jurisdiction to try the ques¬ 
tion of title to a public office. (Tappen v. Gray, 9 
Paige, 507, affirmed 7 Hill, 259; People ex rel. AVood v. 



Procedure 


185 


Draper, 24 Barbour, 265; Mott v. Connolly, 50 Barbour, 
516; People v. Albany Railroad, 57 N. Y. 161, 171-2; 
People ex rel. Corscadden v. Howe, 177 N. Y. 499; Wel¬ 
ker V. Lathrop, 210 N. Y. 434; Moir v. Provident Sav 
inp Society, 127 App. Div. 591, 601-604; Matter of 
Hines, 141 App. Div. 569, 574-5; Matter of Sawyer, 
124 U. S. 200.) Equity will not assume jurisdiction to 
grant an injunction to protect an incumbent against 
a contestant pending a proper action. (Welker v, 
Lathrop, supra, overruling Seneca Nation v, Jime- 
son, 62 Misc. 91.) 

A court will not entertain a taxpayer’s suit for an in¬ 
junction {ante, p. 176). 

Title 2.— Mandamus 

Mandamus does not lie to try the question of title 
to a public office. (People ex rel. Arculariuk v. Mayor, 
3 Johns. Cases, 79; People ex rel. Dolan v. Lane, 55 
N. Y. 217; Matter of Gardner, 68 N. Y. 467; People 
ex rel. Faile v. Ferris, 76 N. Y. 326; Nichols v. Mac- 
Lean, 101 N. Y. 526, 536; People ex rel. Nichols v. 
Asylum, 122 N. Y. 190; People ex rel. Wren v. Goetting, 
133 N. Y. 569; People ex rel. Lewis v. Brush, 146 N, Y. 
60; Matter of Hart, 159 N. Y. 278, 161 N. Y. 507; Peo¬ 
ple ex rel. McLaughlin v. Police Commissioners, 174 
N. Y. 450; People ex rel. Requa v. Neubrand, 32 App. 
Div. 49; People ex rel. Beverforden v. Bauer, 137 
App. Div. 67.) 

Title 3. — Code Action in Nature of Quo Warranto 

Form of Remedy: The question of title to a public 
office can only be tried in a code action in the nature of 
quo warranto. (Johnston v. Garside, supra; People 
ex rel. Wren v. Goetting, supra; Matter of Hart, supra; 
People ex rel. Lazarus v. Sheehan, 128 App. Div. 743.) 


18G 


The Nev/ York Election Laws 


The writ of quo warranto and proceedings by in¬ 
formation in the nature of quo warranto have been 
abolished, but the relief formerly obtained by means 
thereof may be obtained by action (Code Civ. Pro., 
Sec. 1983). It is only the form of the proceeding that 
is done away with. The jurisdiction and power of the 
courts are not affected, nor the right to seek and reach, 
through them, all the remedy which that writ or in¬ 
formation once afforded. (People rel. Hatzel v. Hall, 
80 N. Y. 117.) The forms of procedure have been 
changed, but the position of the defendant, and the 
rules of evidence and the presumptions of law and fact 
are the same as they were. (People ex rel. Judson v. 
Thacher, 55 N. Y. 525.) 

Party Plaintiff: The code authorizes the attorney- 
general to maintain an action, upon his own informa¬ 
tion or upon the complaint of a private person, against 
a person who usurps, intrudes into or unlawfully holds 
or exercises, within the state, a franchise or a public 
office (Sec. 1948). The attorney-general has discretion 
to decide whether to bring the acrtion or not (People 
ex rel. Demarest v. Fairchild, 67 N. Y. 334), but his de¬ 
cision that an action should not be brought is not bind¬ 
ing upon his successor in office. (People v. McClellan, 
118 App. Div. 177, affirmed 188 N. Y. 618, on opinion 
of Ingraham, J., below). The action must be brought 
in the name of the people of the state, and the proceed¬ 
ings therein are virtually the same as in civil suits 
(Sec. 1984; People v. Cook, 8 N. Y. 67). In case the at¬ 
torney-general brings the action upon his own informa¬ 
tion, but alleges that the title to the office belongs to 
some one other than the defendant, such other individ¬ 
ual is a necessary party to the action. (People v. Me- 


Procedure 


187 


Clellan, 119 App. Div. 416.) Where the action is 
brought on the relation or information of a person hav¬ 
ing interest in the question, the complaint must allege 
and the title of the action must show that the action 
is brought upon the relation of that person. In such a 
case, the attorney-general, as a condition to bringing 
the action, must require the relator to give satisfac¬ 
tory security to indemnify the people against the costs 
and expenses thereof. Where security is so given, the 
attorney-general is entitled to compensation for his 
services, to be paid by the relator, in like manner as the 
attorney and counsel for a private person (Sec. 1986). 

Trial: The action must be tried by jury (Sec. 1950; 
Metz V. Maddox, 189 N. Y. 460). The court on motion 
may direct a special jury, if not a struck jury. (People 
V. McClellan, 124 App. Div. 664.) 

Burden of Proof; Certificate of Election: In deter¬ 
mining the question of burden of proof, it must be 
borne in mind that the writ of quo warranto was a 
writ of right for the king, against one who usurps any 
office or franchise, to inquire by what authority he sup¬ 
ports his claim. The king was the fountain of honor, 
of office and of privilege and, whenever a subject under¬ 
took to exercise a public office or franchise he was, 
when called upon by the crown, through the writ of 
quo warranto, compelled to show his title, and, if he 
failed to do so, judgment passed against him. Thus, in 
proceedings by information to try title to office, the 
courts invariably recognized the rule that the burden 
was upon the defendant to show his right and that, 
failing to do it, judgment must go against him; and 
in actions under the code the same rule is enforced. 
The possession of the office is no evidence of right, but 
the burden is upon the defendant to show, by affirmative 


188 


The New York Election Laws 


evidence, that his possession is a legal and rightful 
one. (People ex rel, Judson v. Thacher, 55 N. Y. 525.) 
A certificate of the proper authorities certifying to his 
election is prima facie evidence (People ex reL Wat¬ 
kins V. Perley, 80 N. Y. 624), but prinm facie evidence 
only. (People ex rel. Benton* t?. Vail, 20 Wendell, 12; 
People CiT rel. Smith v. Pease, 27 N. Y. 45; People ex 
rel. Judson v. Thacher, supra.) Judgment in an ac¬ 
tion by the people may be rendered against the defend¬ 
ant without adjudging that the title to the office is in 
the relator (People ex rel. Judson v. Thacher, supra ); 
but between the relator and the defendant, the burden 
is upon the relator to make out a better title. (People 
ex rel. Watkins v. Perley, supra.) 

Ballots as Evidence: The ballots cast become lawful 
and proper evidence and neither party can properly 
be excluded, as for failure to serve a bill of particulars, 
from the right of availing himself of this evidence upon 
the trial. Either party may open the boxes without 
preliminary evidence tending to show misconduct, 
error, omission, or fraud (People v. McClellan, 191 
N. Y. 341), but preliminary evidence must be given to 
show that the ballots have been preserved in the boxes 
inviolate. (People err rel. Dailey v. Livingston, 79 N. 
Y. 279; People v. McClellan, supra.) 

Scope of Enquiry: Starting with the principle that 
the election and not the return is the foundation of the 
right to an elective office, it is competent, in an action 
to try title, not only to recanvass the ballots in the bal¬ 
lot boxes, but to go behind the ballots and purge the re¬ 
turn by introducing oral testimony (People ex rel. 
Stemmier v. McGuire, 2 Hun, 269, 274, affirmed 60 N. 
Y. 640), as, for instance, to prove that votes cast for a 
candidate of a certain name were cast for a candidate 



Procedure 


189 


of a not inconsistent name (People v. Ferguson, 8 
Cowen, 102; People v. Seaman, 5 Denio, 409; People 
V, Cook, 8 N. Y. 67); or that improper votes were re¬ 
ceived and counted which were cast by persons not 
qualified to vote (People ex rel. Smith v. Pease,. 27 
N. Y. 45; People ex reL Judson v. Thacher, supra ); or 
that proper votes were not recorded on a voting ma¬ 
chine. (People ex rel, Deis ter v. Wintermute, 194 N. 
Y. 99. Compare, however, 15 Cyc. 423; N. Y. Cement 
Co. V, Keator, 62 App. Div. 577, affirmed 173 N. Y. 235.) 

Direction of Verdict: In an action to try title, the 
court may direct a verdict for the plaintiff, even though 
the defendant has a certificate of election, if the plain¬ 
tiff makes out a prima facie case by oral testimony 
and there is no direct proof to meet it. (People v. 
Cook, 8 N. Y. 67.) 

Judgment: Where a defendant is adjudged to be 
guilty of usurping or intruding into or unlawfully hold¬ 
ing or exercising an office, franchise or privilege, final 
judgment must be rendered, ousting and excluding him 
therefrom and in favor of the people or the relator, as 
the case requires, and for the costs of the action. The 
court, in its discretion, may also award that the defend¬ 
ant pay to the people a fine not exceeding $2,000 (Code 
Civ. Pro., Sec. 1956). 

Subsequent Proceedings: When final judgment has 
been rendered in favor of the person alleged to be enti¬ 
tled, he may recover, by action, the damages which he 
has suffered in consequence of the defendant’s usurpa¬ 
tion. (Code Civ. Pro., Sec. 1953; Kessel v. Zeiser, 102 
N. Y. 114; Stemmier v. Mayor, 179 N. Y. 473.) 


190 


The New York Election Laws 


ARTICLE X 
EQUITY 

Equity has no jurisdiction over the appointment and 
removal of public officers, even at the instance of a 
taxpayer {ante, p. 176), or to maintain the status quo 
ante, p. 184). 

A court of equity, obviously, cannot entertain a tax¬ 
payer’s suit to enjoin a public officer from an alleged 
violation of his campaign pledges. (O’Reilly v. John 
Purroy Mitchel, 85 Misc. 176.) 

• The election law must be strictly construed in deter¬ 
mining the subject of summary judicial review there¬ 
under. It does not authorize a temporary injunction 
against threatened acts of election officers (Matter of 
Zimmer, 76 Misc. 320; Matter of Woods, 151 Supp. 
856); and, generally, an injunction order in an election 
case is a nullity and cannot be enforced by contempt 
proceedings (Matter of Holle, 160 App. Div. 369). 

ARTICLE XI 

ACTION FOR DAMAGES AGAINST ELECTION 
OFFICERS 

At common law, if election officers wilfully and mali¬ 
ciously refused to receive the vote of a qualified voter, 
he could maintain an action to assert his right and re¬ 
cover damages against them. (Ashby v. White, 2 Lord 
Raymond, 938; Jenkins v, Waldron, 11 Johnson, 114.) 
If any such right still exists under the present statute, 
where a qualified voter may always compel the receipt 
of his vote by mandamus {ante, p. 171), malice is un¬ 
doubtedly a necessary element to the action. (Lurman 
V, Jarvie, 82 App. Div. 37, 45.) 


^art jFiftl) 

CKIMES RESPECTING THE ELECTIVE 
FRANCHISE 

ARTICLE I 
IN GENERAL 

The statute law of the state makes a crime of virtu¬ 
ally every act or omission, whether of voter or election 
officer, which is not in substantial accordance with the 
provisions of the election law. Many of these statutory 
provisions are contained in the penal law, but many 
of them are also scattered through the election law, 
without any attempt at systematic arrangement. In¬ 
deed, many of them overlap one another, and there is 
urgent need for systematic codification by the legisla¬ 
ture. These various provisions will be briefly consid¬ 
ered, although it will be impossible, for the purposes 
of this book, to attempt anything approaching a com¬ 
plete codification. 


ARTICLE II 
ENROLLMENT 

The election law, by an amendment passed in 1913 
(Laws of 1913, Chap. 587), makes the signing and mail¬ 
ing or delivery of an enrollment blank, false in any re¬ 
spect, a misdemeanor (Sec. 184). 

[ 191 ] 


192 


The New Yokk Election Laws 


ARTICLE III 
PRIMARY ELECTIONS 

The penal law sets forth thirteen different sets of 
acts eonstitnting misdemeanors at or in connection 
with political caucuses, primary elections, enrollment 
in political parties, committees and conventions 
(Sec. 751). These include acts by voters, such as 
illegal voting, illegal enrollment, interference with vot¬ 
ing or canvass of votes, bribery and taking a bribe, and 
generally any act tending to affect the result of a pri¬ 
mary election or convention. They also include acts 
by officers, tellers, canvassers, election inspectors, pri¬ 
mary inspectors, custodians of primary records, clerks, 
employees and any officer of a political committee or 
a convention. These acts consist in violating the elec¬ 
tion law, permitting anyone else to do so or refusing 
to do any act required by the election law, particularly 
in relation to primaries, enrollment and conventions. 

The penal law also sets forth five sets of acts consti¬ 
tuting a misdemeanor in relation to designating peti¬ 
tions, such as paying voters to sign the same or promis¬ 
ing employment for that purpose and paying any per¬ 
son for ser^dces in procuring signatures upon the basis 
of the number of names procured by such person, or at 
a fixed amount per name (Sec. 760a). 

The election law, in an abundance of precaution, also 
makes any violation of the articles of the election law 
relating to enrollment, party organization, party nom¬ 
inations and designations, conduct of primary elections 
and conventions a misdemeanor (Sec. 93). 

Perjury: It also declares all oaths administered 
under the provisions of the election law to be oaths 
required by law and necessary for the ends of public 
justice (Sec. 94). 


Crimes Respecting Elective Franchise 193 


ARTICLE IV 
REGISTRATION 
Title 1.— False Registration 

The penal law sets forth live sets of acts constituting 
false registration, which is made a felony punishable 
by imprisonment for not more than live years (Sec. 
752). These include illegal registration, attempts 
thereat, and unlawfully permitting or advising an¬ 
other to commit any such act. 

Title 2.— Misconduct of Registry Officers 

The penal law makes the wilful violation by any 
member or clerk of a registry board of any provision 
of the election law relative to registration, or the wil¬ 
ful neglect or refusal to perform any duty imposed by 
law, or fraud in the execution of such duties, a felony 
punishable by imprisonment for not more than ten 
years (Sec. 753). 

Title 3.— Registry List 

The penal law makes the destruction, removal or 
mutilation of any list or register of voters a misde¬ 
meanor (Sec. 754). The election law makes the same 
act in relation to the public copy of registration a 
felony (Sec. 184). 

Title 4. — False Application 

The election law makes any act in connection with 
a false application for registration a felony (Sec. 184). 

7 


194 


The New York Election Laws 


Title 5.— Perjury—Challenge Affidavit 

The election law makes it perjury to incorporate 
any false statement in any challenge affidavit or to 
take a false oath before a board of inspectors. Sup¬ 
pressing, altering or mutilating a signed challenge 
affidavit is also a felony (Sec. 184). 

Title 6.— Assisting False Registration 

The penal law makes it a misdemeanor for any per¬ 
son dwelling in a building in a city to wilfully refuse 
to truly answer any question, or to give any false 
answers to any question relating to the residence and 
qualifications as a voter of any person dwelling in such 
building, or of any person who appears on the register 
as residing thereat, or to knowingly harbor or conceal 
any person who has falsely registered as a voter, or 
to rent a room or bed to any jierson to be used for the 
purpose of unlawfully registering or voting there¬ 
from (Sec. 757). 

Title 7.— False Registration for Special Election 

The election law prohibits an elector from register¬ 
ing in one election district for a special election while 
his name appears on the register of another district to 
be used at that election and makes the violation thereof 
a felony punishable by imprisonment for not less than 
two nor more than five years (Sec. 160). 


Crimes Respecting Elective Franchise 195 


ARTICLE V 

IMPEDING SUPERINTENDENT OF ELECTION 

The election law, in the article dealing with the 
superintendent of election, enacts and defines various 
felonies and misdemeanors. 

It is a misdemeanor to neglect or refuse in a proper 
case to furnish information or exhibit records, papers 
and documents (Sec. 475). 

It is a felony to fail, on demand of the superin¬ 
tendent or a. deputy, to render the aid or assistance 
demanded, or to wilfully hinder or delay him. The 
penalty is not more than three years’ imprisonment. 
If the offender is a public officer, which includes a 
police officer or deputy sheriff, he forfeits his office in 
addition (Sec. 476). 

It is a misdemeanor to disobey a subpoena attested 
in the name of the superintendent or to refuse to 
testify under oath (Sec. 477). 

It is a felony to make a false statement under oath 
(Sec. 478). 

It is, a misdemeanor for a landlord, proprietor, 
lessee, keeper or lodger to violate the law as to reports 
(Sec. 480). 

It is a misdemeanor for the holder of a liquor tax 
certificate to violate the law as to affidavits; and, if he 
incorporates any false statement therein, he becomes 
guilty of perjury and in addition forfeits his liquor 
tax certificate (Sec. 481). 

It is a misdemeanor for an owner or lessee to 
neglect to furnish a list of male residents when de¬ 
manded by a superintendent. If the owner furnishes 
a list containing a false name or a false period of 


196 


The New York F^lection Laws 


residence, lie is guilty of a felony. If a lessee fur¬ 
nishes a false list, he is liable for a penalty of one 
thousand dollars (Sec. 484). 


ARTICLE VI 

CERTIFICATES OF NOMINATION AND OFFICIAL 
BALLOTS 

The penal law provides that a person is punishable 
by imprisonment for not more than five years if he 
falsely makes oath to or defaces or destroys a certifi¬ 
cate of nomination, files or receives a certificate know¬ 
ing any part thereof was falsely made, suppresses a 
certificate which has been duly filed, forges or falsely 
makes the official indorsement on any ballot or, having 
charge of ballots, suppresses them, except as provided 
by law (Sec. 760). 


ARTICLE VII 
OFFICIAL BALLOTS 

Failure to Deliver: The penal law provides that any 
person who has undertaken to deliver official ballots 
and neglects or refuses to do so is guilty of a misde¬ 
meanor (Sec. 761). 

Improper Use of Pasters: The election law makes 
the use of any paster on an official ballot otherwise 
than provided by law to be a felony, punishable by 
imprisonment for not less than one nor more than five 
years (Sec. 137). 


Crimes Respecting Elective Franchise 197 


ARTICLE VIII 

REFUSAL TO PERMIT EMPLOYEES TO ATTEND 
ELECTION 

The penal law makes it a misdemeanor for a person 
or corporation to refuse to any employee entitled to 
vote at an election the privilege of attending thereat, 
or subjects such employee to a reduction of wages 
because of the exercise of such privilege (Sec. 759). 


ARTICLE IX 
ILLEGAL VOTING 

The penal law sets forth five different sets of acts 
constituting illegal voting which relate not only to 
voting, offering or attempting to vote, but also to 
procuring, aiding, assisting, counseling or advising 
illegal voting. Any person who does any such act is 
guilty of'a felony, punishable by imprisonment for not 
more than five years (Sec. 765). 

ARTICLE X 

GENERAL ELECTIONS — ELECTION OFFICERS 

The penal law sets forth eighteen sets of acts con¬ 
stituting ‘‘misdemeanors in relation to elections.^’ 
These include acting as an election officer without 
being able to read and write the English language, or 
without being otherwise qualified to hold such office; 
knowingly permitting any person to vote who is not 
entitled to vote; removing any official ballot from a 


198 


The New Yoek Election Laws 


polling place before the closing of the polls; unlaw¬ 
fully going or remaining within the guardrails; plac¬ 
ing any mark upon a ballot with the intent that it may 
thereafter be identified, wilfully disobeying any law¬ 
ful command of an inspector, and many others (Sec. 
764). 

The penal law also provides that a public officer who 
omits, refuses or neglects to perform any act required 
of him by the election law, or refuses to permit the 
doing of any act authorized thereby is punishable by 
impri>sonment for not more than three years or by a 
fine of not more than three thousand dollars or both 
(Sec. 763). 

The election law proyides a penalty of one hundred 
dollars for an election officer who fails to take the oath 
of office or wilfully neglects or refuses to discharge 
his duties or, if removed, to turn over the register and 
other papers-to his successor (Sec. 310). 

The election law makes the violation of the oath 
taken by election officers and other persons assisting 
disabled and illiterate voters a felony, punishable by 
imprisonment for not less than two nor more than 
ten years (Sec. 357). 

The penal law makes it a misdemeanor for any elec¬ 
tion officer or watcher to reveal how a voter has voted, 
or to communicate his impression on that point; also 
to unfold, before the closing of the polls, a ballot which 
a voter has prepared for voting (Sec. 762). 

The election law makes it a felony for any person to 
prompt a voter, previously challenged at registration, 
in answering any questions put to him on election day 
(Sec. 355). 

The penal law provides that an inspector or poll 
clerk who intentionally makes a false canvass or a 


Crimes Respecting Elective Franchise 199 

false statement of the result or any person who in¬ 
duces or attempts to induce any inspector or clerk so 
to do is guilty of a felony (Sec. 766). 

The election law makes it a felon}’^ for an inspector 
to refuse to write in ink on the back of any ballot a 
memorandum of a ruling on or objection to the count¬ 
ing thereof or to refuse to place a ballot-to the count¬ 
ing of which objection has been made in the package 
of protested ballots (Sec. 369). 

The election law imposes on the chairman of the 
board the duty of certifying to the facts necessary to 
make up the pay-roll and makes it a misdemeanor to 
wilfully make a false certificate (Sec. 309). 

The election law prohibits the sale of intoxicating 
liquors, ale or beer in the polling place and provides 
that any person so doing is guilty of a misdemeanor 
(Sec. 299). 

The election law provides that the provisions of the 
penal law" and its provisions relating to misconduct at 
elections shall apply to elections with voting machines. 
It also makes it a felony, punishable by imprisonment 
for not less than one year nor more than five years to 
tamper with any voting machine or for any election or 
police officer or assistant to permit any such inter¬ 
ference (Sec. 417). 


ARTICLE XI 

NATURALIZATION CERTIFICATES 

The penal law provides that any person who know¬ 
ingly or wilfully procures a certificate of naturaliza¬ 
tion to enable himself or any other person to vote 
when he or such person is not entitled to become a 


200 The New Yokk Election Laws 

citizen or to exercise the elective franchise is guilty 
of a.felony (Sec. 777). 

The penal law also makes it a felony for any person 
to knowingly and wilfully present a certificate of nat¬ 
uralization, fraudulently secured, with intent to en¬ 
able any person to vote at any election when such per¬ 
son is not entitled to become a citizen or to exercise the 
elective franchise (Sec. 778). 


ARTICLE XII 
CORRUPT PRACTICES 

As a matter of convenience this subject has been 
fully considered elsewhere {ante, p. 151). 

ARTICLE XIII 
POLICE IN POLITICS 

The penal law sets forth three sets of acts constitut¬ 
ing ‘‘misconduct concerning police commissioners or 
officers or members of any police force (Sec. 756). 
These are designed to keep the police out of politics 
and eliminate any use of official power in aid of or 
against any party or organization, such, for instance, 
as transferring an officer because of party adherence, 
contributing or receiving any moneys for any political 
fund or becoming a member of any political club. 


Crimes Respecting Elective Franchise 201 


ARTICLE XIV 
CONSPIRACY 

The penal law provides that conspiring by two or 
more persons to promote or prevent the election of 
any person to a public office by the use of any means 
which are prohibited by law is punishable by imprison¬ 
ment for not more than one year (Sec. 773). 


ARTICLE XV 

GIVING AND RECEIVING CONSIDERATION FOR 
FRANCHISE 

The penal law defines at considerable length and in 
great detail both the giving consideration for fran¬ 
chise (Sec. 768) and the receiving consideration for 
franchise (Sec. 769). Both are made felonies. The 
punishment for giving also includes forfeiture of office 
and incapacity to hold any office for five years after 
conviction and the punislmient for receiving also in¬ 
cludes the exclusion from the right of suffrage for five 
years after conviction. 


ARTICLE XVI 

DURESS OR INTIMIDATION OF VOTERS 

The penal law makes it a misdemeanor for any 
person or corporation to be guilty of duress or intimi¬ 
dation of voters, and provides that, if a corporation, 
it shall, in addition, forfeit its charter. This pro¬ 
vision incidentally makes special reference to the use 


202 


The New York Election Ijaws 


of ‘‘ pay envelopes ” upon which there is written or 
printed any political motto or device, containing 
threats, calculated to influence the political opinions 
or actions of employees (Sec. 772). 


ARTICLE XVII 

USE OF POSITION OR AUTHORITY — POLITICAL 
ASSESSMENTS 

The penal law sets forth four sets of acts which it 
defines as ‘‘ corrupt use of position or authority ” and 
punishes by imprisonment for not more than two years 
or by a fine of not more than three thousand dollars 
or both (Sec. 775), and six sets of acts consisting of 
use of position or authority to compel or induce 

political assessments ” and punishable as a misde¬ 
meanor (Sec. 774). Section 775 includes and seeks to 
prevent corrupt bargaining by or with a boss, exercis¬ 
ing authority which can be used to influence a nominat¬ 
ing body. (People v. Willett, 213’N. Y. 368.) 

There are also provisions in the civil service law 
relating to the same subject in respect to both officers 
and employees {ante, p. 153). 


ARTICLE XVIII 
IMMUNITY 

The penal law provides that any person offending 
against any section of the article dealing with the 
elective franchise is a competent witness against 
any other person so otfending, but the testimony so 
given shall not be used against the person testifying 
(Sec. 770). 


Crimes Respecting E;.ective Franchise 203 


ARTICLE XIX 
PENALTIES 

Title 1.— Misdemeanors 

Any person convicted of a misdemeanor under the 
article of the penal law relating to the elective fran¬ 
chise shall he punished, for a first offense, by im¬ 
prisonment for not more than one year or by a fine of 
not less than one hundred dollars nor more than five 
hundred dollars or both such fine and imprisonment. 
Any person convicted of a misdemeanor for a second 
or subsequent offense shall be guilty of a felony (Sec. 
782). 

Title 2. — Felonies 

Punishment for a felony for which no other punish¬ 
ment is specially prescribed is punishable by imprison¬ 
ment for not more than seven years or by a fine of not 
more than one thousand dollars or both (Sec. 1935). 


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, fi ‘: 

( 

, 3nbex 

• Actions to try Title; page 

Not equity. 184 

Not mandamus. 185 

Quo warranto sole remedy. 185 

Alternate to National Convention: 49 

Assembly District: 48 

ballot: 

Constitutional considerations.4, 5 

Printing the ballot. 65 

Failure of election officers to act. 66 

Official ballot for general officers. See Official Ballot. 

Presidential ballot ..'.65, 119 

Official primarj^ ballot. See Official Primary Ballot. 

Ballots for questions submitted.-. 120 

Sample ballots. 120 

Unofficial ballots.77, 121 

War ballots. 133 

Voted ballots.Ill, 172 

Void and protested ballots.Ill, 174 

Ballots improperly printed.65, 115, 132 

Marking the ballot. See Marking the Ballot. 

V Examination of ballots.172, 173 

Ballots as evidence. 188 

Criminal misconduct in respect to ballots. 196 

Ballot Box: 

Enrollment boxes . 47 

Ballot boxes at primaries. 79 

Ballot boxes at general elections. 100 

Ballot Clerk: See Election Officer. 

[205] 






















206 


Index 


Ballot Reform: See Election Reform. page 

Blank Forms: 100 

Board: 

Bipartisan character . 28 ‘ 


Boards of election. See Board of Election. 
Boards of registration. See Election Officers. 
Boards of inspectors. See Election Officers. 
Boards of canvassers. See Election Officers. 


Board of Elections: 

Nature of office. 145 

Appointment. 145 

Organization. 145 

• Office force. 146 

Custodian of primary records.. 146 

Jurisdiction. 85 

Office hours. 146 

Right to assistance from police. 146 

“ Bolting ” by Party Men: 87 


Candidate or Nominee: See Nomination. 


Canvass: ‘ ‘ 

Canvass of enrollment. 46 

Canvass of primary elections by election officers. 80 ' 

Canvass of statements of result by boards of election and 

secretary of state . 81 

Canvass of votes by election officers. 107 

Canvass by city, county and state boards. 115 

Ministerial powers of canvassers.. 116 

Criminal misconduct in respect to canvass. 197 

Certificate of Election: 

To party position. 81 

To public office. 117 

Prima facie evidence of title. 188 





















Index 


207 


Certificate of Nomination: page 

Form of certificate. 89 

Place of filing. 83 

Time of filing. 84 

Where last day is a Sunday. 85 

Hour of filing. 85 

Certiorari: 

To review determination. 177 

To inquire into cause of detention. 177 

Challenge Affidavit: 96, 107 

Challenge: 

At primary elections. 70 

At registration. 96 

At general election. 106 

Challenger: 150 

City Board of Canvassers: See Canvass. 

Closing the Polls: See General Elections. 

% 

Commissioner of Election: See Board of Election. 
Commitment: 181 

Committee: 

Histor}^. 33 

Defined. 52 

Party committees. 52 

State committee.,. 52 

County committees. 52 

Organization and rules. 53 

Election. 52 

Removal. 53 

Vacancies. 53 

Determination by party authorities. 53 

Review of election and removal.163 























208 


Index 


PAGE 

Congressmen: 133, 136 

Constitution: 

Tripartite system of government. 1 

The constitution and its interpretation. 1 

Principles of construction. 3 

Legislative power.1, 

Election laws. 2 

* ^ * Franchise of voters . 1 

Freedom in voting. 4 

Freedom in participating in all election machinery. 4 

Equality of opportunity. 5 

Qualifications and disqualifications of voters. 7 

S.ex. 8 

Age. 8 

:: r Residence ... ...;. 12 

Losing or gaining a residence. 16 

j- Military service. IS 

Name on ballots only once. 5 

Emblems. 6 

Independent nominations.'. 7 

Election officers, ministerial powers. 10 

Registration.9,18 

Secrecy. 23 

Voting machines.. i .V.". 23 

Bipartisan boards. 23 

^ Determination of parties casting highest number of votes. .. 24 

Private or local laws. 24 

Odd years for municipal elections. 25 

Vacancies in public office. 25 

Oaths..9, 26 

Constitutional Convention. 27 

.Constitutional Amendment: See Questions Submitted. 

Constitutional Convention: 

Constitution. 27 

Laws of 1913, Chap. 819. 28 

:Schieffelin v. Komfort. 20 

































Index 209 

Convention: page 

National Conventions. 49 

State Conventions .49, 50 

Convicts: 94 

Corrupt Practices: 

In general. 151 

Legal expenses and contributions. 151 

Limits of candidates’ expenses. 152 

Judicial candidates. 152 

Solicitations. 152 

Governmental employees . 152 

Corporations and joint stock companies.'152 

Political committees . 154 

Statements.i ... 154 

Payments, vouchers . 156 

Use of party funds prohibited. 156 

Crimes Relating to the Franchise: 

Enrollment. 191 

Primaries. 192 

Registration. 193 

Impeding superintendent of election. 195 

Certificate of nomination. 196 

Official ballots . 196 

EmploA'Ces. 197 

Illegal voting. 197 

General elections. 197 

Naturalization certificates . 199 

Corrupt practices..151, 200 

Police.200 

Conspiracy'.201 

Giving and receiving consideration for franchise. 201 

Duress and intimidation. 201 

Political authority and assessments. 202 

Immunity .. 202 

Misdemeanors. 203 

Felonies.203 


































210 


Index 


Cross Mark: page 

Definition. 122 

Question of law.\ 123 

Additional marks disconnected with cross marks. 124 

Irregular cross marks . 124 

Arms extending outside circle. 126 

Cross outside circle. 126 

T, no cross. 126 

Check mark. 126 

Hour glass. 126 

History of cross mark law. 124 

Effect of Saxe law on recounts. 127 

Custodian of Primary Records (Board of Elections) : 146 
Declination : 

Nomination. 60 

Designation. 73 

Public records . 64 

Death of Candidate: See Vacancy. 

Definitions: 

Committee. 52 

Cross Mark. 122 

Custodian of primary records. 146 

Designation. 70 

Designee. 39 

General election. 97 

Independent body ... 83 

Independent candidate. 54 ^ 83 

Independent nomination .54, 83 

Independent nominee. 54 ^ 83 

Nomination. 54 

Official primary. 09 

Official primary ballot. 74 

Official primary election . 09 

I'arty. 43 

Party candidate. 54 

Party nomination. 54 

































Index 


211 


Definitions — Continued PAGE 

Party nominee. 54 

Party position. 70 

Registration. 90 

Unit of representation. 49 

Unofficial primary or unofficial primary election. 69 

Void ballot. 123 

Delegate to National Convention: 49 

Deposition: • 180 

Deputy: See State Superintendent of Election. 

Designation: 

Defined. 70 

Distinguished from independent nomination. 39 

Form and character. 70 

Signers. 71 

Filing designations. 72 

Death of designee before filing. 72 

Objections. 72 

Declination of designations. 73 

Designee: 39 

Direct Nomination: See Direct Primary. 

Direct Primary: 

History. 34 

Arguments pro and con. 36 

See, also, Official Primary Elections. 

District: 

Subdivisions of New York State. 48 

Election district. 48 

Assemlily district. 48 

Primary district. 77 

Unit of representation. 49 























212 


Index 


Elections: page 

Elections, generally . 31 

General election. See General Election. 

Special election. See Special Election. 

Primary election. See Official Primary Election. 

General and primary elections distinguished.31, 38 

Election Day: 

Date. 97 

Holiday. 98 

Sale of liquor. 98 

Processions. 98 

Tolls. 98 

Service of process. 98 

See, also, General Election. 

Election District: 48 

Election Laws: 

Constitutional questions . 2 

History of. See Statutes. 

Necessity for . 31 

Election Officers: 

Bipartisan. 147 

Classification: 

Four inspectors, who act as registrars, inspectors and 

canvassers.78, 146, 148 

Two ballot clerks .78, 146, 149 

Two poll clerks.78, 146, 149 

Appointment, qualification, etc. 

Appointment. 147 

Qualifications. 147 

Powers ministerial only. 10 

Right to maintain order. 103 

. Liability. lOO 

Effect of carelessness on result of election. . <. 115 

Vacancies and absences. 148 

Removal.78, 148 

Transfer. 148 

























Index 


213 


Election Officers — Continued PAGE 

Conduct at registration. , 

Registering voters. 94 

Keeping registers. Signature copy. 95 

Challenges. 96 

Criminal misconduct. 193 

Conduct at primary elections. 

In general, same as at general elections. 78 

Supervision of voting . 79 

Canvass. 80 

Proclamation and statement of result. 80 

Disposition of ballots and statements. 80 

Conduct at general elections. 

Meet at 5 :30 A. M. 101 

Vacancies.101, 148 

Oaths. 101 

Organization of board. 101 

Designations for special duty.101, 102 

Preparation of polling place and paraphernalia.102 

Opening of polls. Proclamation. 102 

Conditions during polling. 103 

Proceedings public . 103 

Preserving peace and order. 103 

Conduct of polling.■. 103 

Illiterate and disabled voters. 106 

Challenges..'.106 

Conduct of canvass. 107 

Blank forms. 100 

Tally sheets .’. 100 

Disposition of ballots and documents..113, 114, 171 

Criminal misconduct. 197 

De facto officers. 115 

Carelessness of election officers. 115 

Election ‘ ‘ Reform ’ ’: 

Relative importance of various proposed reforms. 40 

Massachusettts ballot. 39 

Short ballot . 42 

Revision of penal provisions. 191 

State convention . 50 





































214 


Index 


Emblem: page 

Constitutional considerations . 6 

Necessity. 6 

Party emblems... 

Emblems of independent bodies. 55 

What emblems may be used. 56 

Supplying omitted emblems. 57 

Conflicts between parties or independent bodies. 57 

Conflicts between factions . 57 

Appropriation by mala fide adherents. 58 

Judicial review . 166 

Employees: 

Right to attend polling place. 106 

Crime to prevent. 197 

Use of pay envelopes bearing political motto. 202 

Enrollment: 

Origin. 33 

Nature. 43 

Optional. 44 

Paraphernalia. 44 

Manner of . 45 

Canvass. 46 

By new political party. 46 

Special enrollment on coming of age. 46 

Publication of enrollment. 47 

Enrollment books . 47 

Duj)licate books . 47 

Mandamus for improper denial of.. 171 

Correcting erroneous enrollment . 46 

Review of enrollment. 162 

“ Sufficient evidence’^ for striking names from enrollment. 162 

Notice required . 162 

Criminal misconduct in relation to enrollment. 191 

Equity; ' 166,184,190 

Executive Writ; 98, 134 


Felony; 


203 































Index 


215 


General Election: . ’ page 

Defined . 97 

Election day. See Election Day. 

Hours . 98 

Place . 99 

Vacancies . lOO 

Paraphernalia . 100 

Blank forms. 100 

American flag . 100 

Tally sheet.*... 100 

Ballots at election. See Ballots. 

Election othcers. See Election Officers. 

Oaths. 101 

Organization of board. 101 

Designations for special duty. 101 

Opening of polls . 102 

Conditions during polling . 103 

Procedure in voting. 103 

Illiterate or disabled voters. 106 

Employees . 106 

Challenges . 106 

Canvass by election officers. 107 

Order of canvassing. 108 

Verifying number of ballots. 108 

Method of canvass. 109 

Presidential ballots . 110 

Statements of canvass — disposal of ballots. Ill 

Proving the tallies . Ill 

Powers of inspectors. Ill 

Proclamation of result. 112 

Police statements . 113 

Sealing and disposition of statements of canvass. 113 

Void and protested ballots. 114 

Other voted ballots. 114 

Canvass by city, county and state boards. See Canvass. ■ 
Criminal misconduct. 197 

Guard-Rail: 

Persons within .80, 103 


































216 


Index 


Habeas Corpus and Certiorari: page 

Challenging information . 179 

Challenging deposition . 180 

Challenging commitment. 181 

History of Election Laws: See Statutes. 

Illiterate and Disabled Voters: 

At registration. 96 

At elections. 106 

Immunity: 202 

Independent Body: 83 

Independent Certificate of Nomination: See Independent 
Nomination. 

Independent Nomination: 

Definition . 83 

Constitutional considerations . 4 

Liberal construction of laws respecting. 83 

Signers and their qualifications. 86 

Number of signers . 88 

Certificate .83, 89 

Time of filing. 84 

Death of nominee before filing. 84 

Preliminary determination . 85 

Forgery, fraud or irregularity. 89 

Prima facie evidence...89, 90 

Designations distinguished . 39 

See, also. Nomination. 

Information (Criminal): 179 

Injunction: 166, 190 

Inspector of Election: See Election Officer. 

Intent of Voters: See Marking the Ballot. 



















Index 


217 


Judicial Candidates: See Corrupt Practices. page 

Legal Expenditure : See Corrupt Practices. 

Mandamus : See Procedure. 


Marking the Ballot: 

Statutory rules . 121 

Cross mark. See Cross Marks. 

Ink or colored lead. 129 

Writings . 129 

Erasures . 129 

Tears. 129 

Inclosures . 130 

Alteration subsequent to voting. 130 

' Straight ticket. 130 

Split ticket . 130 

Marking in two circles. 131 

Questions submitted . 132 

Void ballot. 121 

Members in Congress: 133, 136 

Members of the State: See Voters. 

Metropolitan Elections District: 141 

Mills’ Hotels and Other Irregular Home: 15 

Misdemeanor: 203 

Names: 

What names may be used. 87“ 

Conflicts between parties or independent bodies. 57 

Conflicts between factions. 57 

Appropriation by bona fide opponents. 57 

Appropriation by mala fide adherents. 58 

Judicial review . 166 


Name of same candidate variously expressed or spelled.. 

116, 166, 188, 189 




















218 


Ij^dex 


• PAGE 

National Convention: 49 

Naturalization: 

Qualifications as voters. ‘94 

Crimes in respect to naturalization certificate.199 

Newspapers, Selection of: 99 

Nomination: 

Definition . 54 

Party nominations. 

In general. 54 

Presidential electors. 55 

Minor local officers. 55 

Special city elections. 55 

Special elections . 55 

Independent nominations.55, 82 

Public records . 64 

No nomination. 65 

Oaths: 

Constitutional considerations . 26 

Election officers. 101 

Voters.10, 107 

Objections: 

To designations. 72 

To nominations . 60 

^ Procedure . 166 

Public records . 64 

Officers: 

In general. 140 

State superintendent of election. See State Superintend¬ 
ent OF Election. 

Boards of election. See Boards of Election. 

Election officers. See Election Officers. 

Watchers. See Watchers. 

Challengers. See Challengers. 






















Index 


219 


Official Ballot (Ballot for General Officers): page 

Printing.. 117 

Form and character.118, 119 

Official Primary Ballot: 

Detinition ..".. 74 

History. 74 

Fonn and character.■ 75 

Distinguished from official ballot at general elections. 76 

Union label. 77 

Official Primary Election: ‘ I 

Definition . 69 

History.33, 34, 35, 36, 37 

Direct primaries. See Direct Primaries. 

Date and hours. . 69 

Spring primar}^ in presidential years . 69 

Fall primary . 69 

Primary districts . 77 

Qualifications of voters. 70 

Challenges . 70 

> Designations. See Designations. . ^ 

Officers . 78 

Official primary ballot. See Official Primary Ballot. <• 

Conduct of election. 77 

r, r Election officers. 78 

Paraphernalia . 79 

Manner of voting. 79 

Canvass of 'votes. 80 

Proclamation and statement of result. 80 

Disposition of ballots.. . ■ 80 

Persons within guard-rail./. 80 

Electioneering . 81 

Canvass of statements of result. 81 

Use of party funds. See Corrupt Practices. 

Judicial review’ of designations or primaries.163, 164 

Criminal misconduct in connection with primaries.192 

Party: 

Defined . 43 

Distinctions .39, 82 
































220 


Index 


Party — Continued page 

Development of party organization . 33 

Party organization. See Committees. 

Determinations by party authorities. 53 

Party Committee: See Committee. 

Party Nomination: 

Definition . 54 

In general. 54 

Minor local officers. 55 

Presidential electors . 55 

Special elections . 55 

Party Organization: 

History . 33 

Political subdivisions of the State. 48 

Conventions . 49 

Committees. 52 

Determinations by party authorities. 53 

Party Position: 70 

Paster: 63 

Pay Envelopes: 202 

Penal Law: See Crimes Affecting the Franchise. 

^ Police: 

Assistance to superintendents and deputies. '..... ] 42 

Assistance to board of elections. 146 

Statements . 113 

Misconduct in connection with elections. 200 

Police Statements: 113 

Political Committee: See Corrupt Practices. 


Polling Place: 


99 


















Index 


221 


Poll Clerk: See Election Officers. page 

Presidential Elector: .. 55 

Presidential Primary: 51 

Primary Districts: 77 

Primary Election: See Official Primary Election. 

Primary Laws: See Statutes. 

Printing the Ballot: 65, 115 

Procedure: 

Policy as to .judicial review. 157 

Time for application to the courts. 159 

Prompt determinations . 160 

Summary proceedings: 

Effect of proceeding under wrong section. 161 

Enrollment . 161 

Sufficient evidence... 162 

Notice . 162 

Membership on party committees. 163 

Review of designations. 163 

Review of primaries. 164 

Injunction .166, 190 

Certificate of nomination.• •. . 166 

Names and emblems. 166 

Reform in procedure. 167 

Date of final order. 168 

Registration . 168 

Courts reluctant to interfere. 169 

Official ballots . 170 

Corrupt practices act. 170 

Mandamus: 

Enrollment . 171 

Election officers . 171 

Examination . 172 

Recount. 171 

























Index 


ooo 


Procedure — Coniinued 
Mandamus — Continued 

Ballots ill boxes. 

Void and protested ballots. 174 

Questions submitted . 174 

Procedure. 17.! 

Referee . 175 

Canvass. 175 

Not to tiy title. 170 

-By whom granted. 170 

Taxpayers actions . 176 

Certiorari to review. 177 

Habeas corpus and certiorari to inquire. 177 

Actions to try title. See Actions to Try Title. 

Quo warranto. See Quo Warranto. 

Equity. 166, 184, 190 

Actions for damages against election ofOcers. 190 

Proclamation: 

Opening the polls. 102 

Closing the polls. 112 

Publication in Newspapers: • ^ 99 

Quo Warranto: 

Sole remedy to try title. 185 

Party plaintiff. 186 

Jury trial . 187 

Burden of proof . 187 

Certificate of election. 188 

Ballots as evidence. 77777 .. 188 

Scope of inquiiy. 188 

Direction of verdict. 189 

J udgment . 189 

Congress . 135 


Recounts: 

Of void and protested ballots. See Mandamus. 
Of ballots in the boxes. See Quo Warranto. 
Effect of Saxe Cross Mark law. 


127 




























Index 


223 


Reform: See Election Reform. page 

Registration: 

Definition . 90 

Constitutional provisions. 18 

Rural communities .'.^ 91 

New York City. 93 

Cities and villages having five thousand or more inhabitants. 93 

Imperfect registration . 93 

Qualification and disqualification of voters. 94 

Registration days . 93 

Register. 95 

Conduct of registration. 95 

Signing register. 96 

Illiterate and disabled voters. 96 

Challenges . 96 

Entry requiring challenge on election day. 97 

Adding names to register.168, 169 

Striking names from register. 169 

Affidavit by superintendent of elections or deputy. 169 

Reluctance of courts to interfere. 169 

Criminal misconduct affecting registration. 193 

Residence: 

Constitution . 12 

Judicial definition . 13 

So called Gavegan decision ”. 14 

Mills’ hotels and other irregular homes. 15 

Losing or gaining. 16 

Rules: See Marking the Ballot. 

Sample Ballot: 120 

Secrecy: 

Constitutional provisions . 23 

Voting machines . 23 

Town meetings. 23 


Short Ballot: 


42 




























224 


Index 


PAGE 

Soldiers and Sailors’ Election: 133 

Special Election: 

Registration .20, 21, 22 

Nominations . 55 

Election . 98 

Split Ticket: See Marking of Ballots. 

State: 

Tripartite system of government.-. 1 

Civil and political divisions. 48 

State Board of Canvassers: See Canvass. 

State Committee: See Committee. 

State Convention: 49, 50 

State Superintendent of Elections: 

History of office. 140 

Superintendent . 142 

Deputies .148 

Clerks .. *144 

Liability . 144 

Lodging bouses, hotels and dwellings. 144 

Crimes arising in connection with performance of duties.. 195 
Right to assistance. 142 

Statement of Candidate: See Corrupt Practices. , 

Straight Ticket: See Marking op Ballots. 

Statutes: 

Laws of 1842. Chap. 130, General Election Law. 31 

Laws of 1890. Chap. 262, Ballot Reform Act. 32 

Laws of 1895. Chap. 810, Blanket ballot. 32 

Laws of 1896. Chap. 909, General Election Law. 32 

Laws of 1898. Chap. 179; Laws of 1899, Chap. 473, 
Primary Laws- ..33 , 



















Index 


225 


Statutes — Continued page 

Laws of 1898. Chap. 335, General Amendments. 125 

Laws of 1898. Chap. 676,. Metropolitan Superintendent 

of Elections Law. 141 

Laws of 1901. Chap. 654, General Amendments. 125 

Laws of 1909. Chap. 22, Consolidated Election Law. .36, 37 

Laws of 1911. Chap. 296, Saxe Cross Mark Law.. 122, 124 

Laws of 1911. Chap. 649, Levy Law. 37 

Laws of 1911. Chap. 891, Direct Primary Law. 37 

Laws of 1912. Chap. 52, Enrollment. 46 

Laws of 1913. Chap. 587, Enrollment of new party, pub¬ 
lication of polling places, registration a felony.19 46 

Laws of 1913. Chap. 819, Constitutional Convention Law 28 

Laws of 1913. Chap. 820, Statewide Direct Primary Law 38 

Laws of 1913. Chap. 821, Massachusets Ballot Law.38, 39, 42 

Laws of 1913. Chap. 822, United States Senators. 136 

Laws of 1915 Chap. 678, General Amendments.. .38, 44, 71 

77-9, 93, 97, 106, 113, 141-144, 147 

Summary Proceedings: See Procedure. 

Superintendent of Elections: See State Superintendent 
OF Electtions. 

Tally Sheet: 100 

Town Meeting: 

Secrecy unnecessary . 23 

Boards need not be bipartisan. 24 

General provisions . 132 

Unit of Representation: 49 

Unit-Area of Representation: See Unit of Representation. 

United States Senators: 133, 136 

Unofficial Ballot: 

At primary elections. .. 77 

At general elections. 121 

Unofficial Primary: 69 

15 















226 


Index 


Vacancy: ^ page 

Coustitutional provisions. 25 

Vacancies in public office. 99 

Vacancy in office of justice of Supreme Court. 99 

Vacancies in designations. 74 

Vacancies in nominations. G2 

Vacancies in election officers. 148 

Village Election: 

Boards need not be bipartisan. 23 

General provisions. 133 

Void Ballot: 111, 174 

Voter: 

Constitutional franchise and rights. See Constitution. 

Constitutional qualifications and disqualifications. 7 

Statutory provisions.. . 94 

Right to vote, extent-of right.12, 6G 

Right to vote, when challenged. 10 

Mandamus . 171 

Residence . 12 

Removal in or from district. 94 

Naturalized persons . 94 

Convicts. 94 

Qualifications to vote at primary elections. 44 

Enrollment. See Enrollment. 

Registration. See Registration. 

Right of voter to vote where no nomination is made... .12, GG 
Voting Machines: 

Constitutional considerations . 23 

Voting machine commissioners . 137 

Adoption of voting machines. 137 

Application of other provisions of law. 139 

Courts reluctant to interfere. 139 

War Ballot: ' 133 

Watchers: 149 


Woman’s Suffrage: 


8 




























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